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Freedom of Information Act

Introduction

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:

FREQUENTLY ASKED QUESTIONS

What is the FOIA?

The FOIA is a Federal law that establishes the public's right to request existing records from Federal government agencies.

Who can file a FOIA request

Any “person” can file a FOIA request, including U.S. citizens, foreign nationals, organizations, universities, businesses, and state and local governments.

Who is subject to the FOIA and what type of information can be requested?

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.

What is a record?

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.

Can we ask questions under the FOIA?

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.

How do I file a FOIA request?

  • Label your request “Freedom of Information Act Request,” preferably within the request letter and on the envelope, and address the request to JFHQ-NM, 47 Bataan Blvd, Santa Fe, NM 87508 ATTN: FOIA Manager.
  • State your willingness to pay applicable fees. If you seek a fee waiver, provide a justification for such a waiver.
  • Describe the specific records you are requesting in enough detail so they can be located with a reasonable amount of effort. Generally, a record is reasonably described when the description contains sufficient file-related information (type of document, title, subject area, date of creation, originator, etc.); or the request contains enough event-related information (date and circumstances surrounding the event the record covers) to permit the conduct of an organized, nonrandom search.

What are the reasons for not releasing a record?

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:

  • A reasonable search of files failed to identify responsive records.
  • The requests if transferred to another Agency, or to another Federal Agency.
  • The request is withdrawn by the requester.
  • The requester is unwilling to pay fees associated with a request; the requester is past due in the payment of fees from a previous FOIA request; or the requester disagrees with the fee estimate.
  • A record has not been described with sufficient particularity to enable the New Mexico National Guard to locate it by conducting a reasonable search.
  • The requester has failed to comply with procedural requirements, other than fee-related, imposed by DoD 5400.7-R or DoD Component supplementing regulations.
  • The information requested is not a record within the meaning of the FOIA and this Regulation.
  • The request is a duplicate request (e.g. a requester asks for the same information more than once). This includes identical requests received via different means (e.g. electronic mail, facsimile, mail, courier) at the same or different times.
  • Any other reason a requester does not comply with published rules other than those outlined above.
  • The record is denied in whole or in part in accordance with procedures set forth in the FOIA.

What are the FOIA exemptions?

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):

  • (b)(1) records currently and properly classified in the interest of national security;
  • (b)(2) records related solely to internal personnel rules and practices, which if released would allow circumvention of an agency function;
  • (b)(3) records protected by another law that specifically exempts the information from public release;
  • (b)(4) trade secrets and commercial or financial information obtained from a private source which would cause substantial competitive harm to the source if disclosed;
  • (b)(5) internal records that are deliberative in nature and are part of the decision making process that contain opinions and recommendations;
  • (b)(6) records which if released, would result in a clearly unwarranted invasion of personal privacy;
  • (b)(7) investigatory records or information compiled for law enforcement purposes;
  • (b)(8) records for the use of any agency responsible for the regulation or supervision of financial institutions; and
  • (b)(9) records containing geological and geophysical information (including maps) concerning wells.

Can I appeal a denial?

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.

How long will it take for my request to be processed?

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.

Do I have to pay for a FOIA request?

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:

Commercial

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.

Educational

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.

Non-commercial scientific

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.

News Media

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.

"Other" Requesters

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.

All requesters should submit a willingness to pay fees regardless of the fee category, however, this does not mean you will be charged fees. Except for commercial requesters whose fees total more than $15, waivers are always considered. Fee waivers may be granted when disclosure of the records is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government. The following factors are weighed in making a fee waiver determination:

  • The subject of the request.
  • The informative value of the information to be disclosed.
  • The contribution to an understanding of the subject by the general public likely to result from the disclosure.
  • The significance of the contribution to public understanding.
  • Disclosure of the information is not primarily in the commercial interest of the requester.
  • The ability of the requester to disseminate the information.

Conclusion

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
FOIA Manager
JFHQ-NM
47 Bataan Blvd
Santa Fe, NM 87508
Dear :
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]

  • a representative of the news media affiliated with the _______ newspaper (magazine, television station, etc.), and this request is made as part of news gathering and not for a commercial use.
  • affiliated with an educational or noncommercial scientific institution, and this request are made for a scholarly or scientific purpose and not for a commercial use.
  • affiliated with a private business and am seeking information for use in the company's business.
  • individual seeking information for personal use and not for a commercial use.
I am willing to pay fees for this request up to a maximum of $___. If you estimate that the fees will exceed this limit, please inform me first.
[optional] I request a waiver of fees for this request because disclosure of the requested information to me is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the NMNG and is not primarily in my commercial interest. [Include details about how the requested information will be disseminated by you to the general public.]
[optional] I also include a telephone number at which I can be contacted if necessary to discuss any aspect of my request.
Sincerely,
Name
Address
City, State, Zip Code
Telephone number [optional]