National Security Archive yesterday’s post on FOIA made me revisit LawCustoms post on Drafting Freedom of Information Act (FOIA) Letter to add several things. According to National Security Archive, Department of Homeland Security (and consequently Customs and Border Protection) has “not updated their FOIA regulations since the passage of the act.” The act here is the Open Government Act of 2007. DHS FOIA Regulations are found under Title 6 C.F.R. Part 5 Subpart A. For members of the trade community, this means that we may need to educate/share information with CBP officers responsible for FOIA administration throughout the United States district ports. In furtherance of information sharing, the proposed sample now includes citations to the Attorney General Memorandum for Heads of the Executive Departments and Agencies and OPEN Government Act of 2007.
A notable point, which may be interesting to increasing number of professionals that use blogs and trade updates. The Act includes online journalist in the fee waiver category for media. The criterion is stated in Sec. 3: “uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.”
FREEDOM OF INFORMATION ACT REQUEST
CBP ENTRY ___________
FROM: [Importer’s Name and Address]
TO: Port Director [Address]
Dear Port Director:
Pursuant to the Freedom of Information Act, 5 U.S.C. § 552 et. seq., and implementing regulations, 19 C.F.R. Part 103, [importer’s name] respectfully requests your Office to provide copies of any and all documents pertaining to the importation of merchandise under CBP Entry [entry number], where the requester is listed as the importer of record. [Importer’s Name] desires to have copies made and furnished without first inspecting them. 19 C.F.R. § 103.5.
The records include, but not limited to, any and all documents pertaining to [entry/entry summary documentation, seizure, request for information, notice of action, etc.].
Further, in this request, the term “records” is used to include, but not be limited to, the following: all documents, reports, rough notes, manuals, lists, inter-agency memoranda, intra-agency memoranda, data, correspondence, books, telegrams, schedules, photographs, sound reproductions, ledger books, graphs, catalogues, statements or any other handwritten, typewritten, computerized, printed, recorded or graphic material of any kind or description whatsoever.
We request your Office to follow the “strong presumption in favor of disclosure” mandated by Congress in OPEN Government Act of 2007 § 2, and the U.S. Supreme Court cited therein. We also ask your Office to follow presumption of openness, prohibiting the use of any FOIA exemptions on the basis of a mere technicality, mandated by the President and the Attorney General in Memorandum for Heads of the Executive Departments and Agencies (March 19, 2009). If any document is denied, in whole or in part, please specify which exemption(s) is (are) claimed for each document or portion denied and provide a complete itemized inventory and a detailed factual justification of the total or partial denial of each document. Specify the number of pages in each document and the total number of pages pertaining to this request.
In excising material, please “black out” the material rather than “white out” or “cut out.” [Importer’s name] expects, as provided by FOIA, that the remaining non-exempt portions of all documents will be released.
Please respond to this request within ten (10) working days as provided in the Freedom of Information Act and the implementing regulation 19 C.F.R. § 103.6. If you experience delay in complying with any one portion of the request, please do not hold back the other portions. [Importer’s name] is agreeable to a piecemeal delivery. If you have any questions, please contact [importer’s contact]. Please communicate your response(s) in writing to the following address [importer’s address]. Failure to determine within 20 days after the receipt of this request whether to comply with the request and to immediately notify [importer’s name] of such determination and the reasons therefor, as required under 5 U.S.C. § 552(a)(6)(A), will prevent your Office from accessing search fees pursuant to OPEN Government Act of 2007 § 6.
[Importer’s name] agrees to pay reasonable charges incurred in connection with the requested search and the copying of the requested records and need no prior notice of the amount of the copying and search fees unless they exceed fifty dollars ($50). If you anticipate exceeding this $50 limit, please contact [importer’s contact].
Your Office maintains the proper jurisdiction to process this request pursuant to 19 C.F.R. § 103.5(d)(2).
- OPEN Government Act of 2007.
- Attorney General Memorandum for Heads of the Executive Departments and Agencies.
- [list exhibits or supporting documents if any]