From the PNA Legal Hotline

By Melissa Melewsky, Media Law Counsel
Pennsylvania Newspaper Association

Q: Can I rely on the provisions of the Right to Know Law when requesting access to federal records like mine inspections conducted by the Federal Mine Safety and Health Administration?

A: No.The Right to Know Law (RTKL) does not apply to federal agencies. The federal Freedom of Information Act is the law to rely upon when requesting records from a federal agency.

The federal Freedom of Information Act (FOIA), 5 U.S.C. §552, requires federal agencies to provide access to records of the federal executive branch and many government controlled corporations. The law does not apply to Congress, the federal courts or to any state agencies.

Similar to the RTKL, FOIA makes records presumptively public and requires the government agency to prove that one of nine exemptions apply. FOIA requires federal agencies to appoint a FOIA representative to receive and process requests. Requests can be hand delivered, mailed or emailed to the agency, and most simple letters requesting access will suffice.

The general rule requires agencies to respond to a request within 20 business days, although this deadline is not strictly enforced and for this reason, PNA recommends making informal requests when possible. The FOIA also requires agencies to proactively release public records that affect the public, many of which can be found in the FOIA Reading Room of each federal agency and on their websites.

FOIA requires agencies to prove a record fits one of the following categories in order to deny access:

1. Records classified as secret in the interest of national defense or foreign policy;
2. Records related solely to internal personnel rules and practices;
3. Records exempted from disclosure by another statute;
4. Trade secrets or other privileged or confidential commercial or financial information;
5. A privileged inter-agency or intra-agency communication that would not be subject to discovery in litigation;
6. A personnel, medical, or similar file that, if released, would constitute a “clearly unwarranted invasion of personal privacy”;
7. Records compiled for law enforcement purposes, the release of which

1. could reasonably be expected to interfere with law enforcement proceedings,
2. deprive a person of a right to a fair trial or an impartial adjudication,
3. could reasonably constitute an unwarranted invasion of personal privacy,
4. could disclose the identity of a confidential source,
5. would disclose techniques, procedures, or guidelines for investigations or prosecutions, or
6. could reasonably endanger an individual's life or physical safety;

8. Records contained in or related to examination, operating, or condition reports about financial institutions regulated or supervised by the SEC; or
9. Records containing geological or geophysical information and data, including maps, concerning wells (oil and gas).

If an agency denies access, requesters have the right to file an administrative appeal with the head of the agency within 30 days of the denial, although some agencies allow additional time for appeal. If the administrative appeal also results in denied access, requesters then have the right to file a federal lawsuit.

The PNA recommends that newspapers retain counsel when pursuing a FOIA denial in court.

For additional information and resources on FOIA, please visit the Reporters Committee for Freedom of the Press.