This handbook is intended to assist you in making Freedom of Information Act (FOIA) requests for New Mexico National Guard (NMNG) records. It will get you started and provide you with a brief description of your rights and the manner in which the NMNG will respond to your requests. The information contained herein is not intended to be definitive or exhaustive.
The FOIA, which is known by its legal cite as 5 U.S.C. § 552, along with the DoD Regulation, governs how requests will be processed within the NMNG. DoD Regulation 5400.7-R, “Department of Defense Freedom of Information Act Program,” can be found at Part 286 of Chapter 32 of the Code of Federal Regulations, and the Army Freedom of Information Act Program can be found at Part 518 of Chapter 32 of the Code of Federal regulations, which is available in most libraries. They can also be purchased from the National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161, for $12.50 each, and may be found on the World Wide Web by entering:
The FOIA is a Federal law that establishes the public's right to request existing records from Federal government agencies.
Any “person” can file a FOIA request, including U.S. citizens, foreign nationals, organizations, universities, businesses, and state and local governments.
The FOIA's scope includes Federal Executive Branch Departments, agencies, and offices, Federal regulatory agencies, and Federal corporations. Congress, the Federal Courts, and parts of the Executive Office of the President are not subject to the FOIA. State and local governments are likewise not subject to the Federal FOIA, but some states have their own equivalent access laws for state records. At the Office of the Secretary of Defense/Chairman of the Joint Chiefs of Staff level, you may expect to find policy, planning and budgetary information for the DoD.
A record is the product(s) of data compilation, such as all books, papers, maps, and photographs, machine readable materials, inclusive of those in electronic form or format, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law in connection with the transaction of public business and in the New Mexico National Guard possession and control at the time the FOIA request is made.
The FOIA does not require Federal Agencies to answer questions, render opinions, or provide subjective evaluations. Requesters must ask for existing records, such as those mentioned above.
The reasons why the New Mexico National Guard may not release a record when a request for the record is made under the FOIA, are:
Records (or portions of records) will be disclosed unless that disclosure harms an interest protected by a FOIA exemption. The nine FOIA exemptions are cited in the Act as 5 U.S.C. § 552(b)(1) through (b)(9):
Yes. If your request is initially denied in whole or in part under one or more of the above exemptions or denied for some other reason, you will be advised of your appeal rights and the proper procedures for submitting the appeal which must be postmarked within 60 days of the date of the denial letter. You may also appeal any determination which you consider to be adverse. As with appeals of denied within 60 days of the date of the letter advising you of the adverse determination.
Whenever possible, an initial determination to release or deny a record is made within 20 working days after receipt of the request by the FOIA Manager. Under certain conditions, expedited access may be granted if there is a compelling need, such as a threat to life and safety, if a person engaged in disseminating information has an urgency to inform the public on actual or alleged Federal Government activity, an imminent loss of substantial due process rights, or a humanitarian need.
The FOIA allows fees to be charged to certain types of requesters, but it also provides that waivers or reductions in fees be given if disclosing the information is in the public interest. Public interest is defined as information which significantly enhances the public's knowledge of the operations and activities of the New Mexico National guard. The FOIA requires that requesters be placed into one of the below categories:
Requesters who seek information for a use or purpose that furthers their commercial, trade, or profit interest are considered commercial requesters. Commercial requesters pay all fees for search, review and duplication.
Institutions of education, including preschools, elementary or secondary schools and institutions of higher learning, qualify as educational institutions. The records must be sought in furtherance of scholarly research. Educational requesters pay only duplication fees, unless it is determined that fees are waived or reduced in the public interest. The first 100 pages are provided at no cost.
Institution is operated solely for conducting scientific research. The records must be sought in furtherance of scientific research. Like educational requesters, these requesters pay only duplication fees, unless it is determined that fees are waived or reduced in the public interest. The first 100 pages are provided at no cost.
A representative of the news media is a person actively gathering news for an entity organized and operated to publish or broadcast news to the public. News media pay only duplication fees, unless it is determined that fees are waived or reduced in the public interest. Again, the first 100 pages are provided at no cost.
Requesters who do not qualify in another category are considered other requesters, and normally make requests for agency records for their personal use. Other requesters receive two hours search, all review costs, and the first 100 pages at no cost.
We trust this information will be helpful to you when pursuing FOIA requests with the New Mexico National Guard. If you have any questions, you may call 505-474-1200 and ask for the FOIA Manager.
Sample FOIA Request Letter
47 Bataan Blvd
Santa Fe, NM 87508
This is a request under the Freedom of Information Act (5 U.S.C. 552). I request that a copy of the following document(s) be provided to me: [identify the documents as specifically as possible].
In order to help you determine my status for the purpose of assessing fees, you should know that I am [insert one of the descriptions below]