The Value of the Freedom of Information Act (FOIA)

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One critical tool in challenging errant visa decisions of consular officers is through the Freedom of Information Act (FOIA).  While the FOIA process with the Department of State is extremely limited in visa cases, sometimes consular officers rely on inaccurate information contained in US Citizenship and Immigration Services (USCIS), Customs and Border Protection (CBP), Federal Bureau of Investigation (FBI), Immigration and Customs Enforcement (ICE) and Drug Enforcement Administration (DEA) files or improperly make visa decisions based on materials contained in those files. In such cases, FOIA requests can be extremely helpful.

Lawyers can assist in three aspects of Freedom of Information Act requests: 1) properly formulating and lodging requests; 2) filing lawsuits when FOIA processing is delayed; and 3) assisting in appeals of government responses to FOIA requests.  The proper formulation of a request can mean the difference between a process that can take 3 months or 12 or more months. The alphabet soup of US government agencies can make the process confusing; many make the mistake of filing the request with the wrong US government agency or waste more than a year waiting for the results of a Department of State FOIA which will not be helpful.  Sometimes the time-consuming FOIA process can be avoided altogether with the proper filing of a simple request for information from the relevant agency.

FOIA requests are supposed to be timely acted upon.  The law requires that a FOIA response be forthcoming within 20 business days. In “unusual circumstances” a government agency may be given an extra 10 business days to process the request.  Yet, government agencies routinely violate these time frames. In such cases, a lawsuit may be filed – which will often prompt the processing of the FOIA request.

Finally, FOIA requests are supposed to be processed with a view towards a “presumption of disclosure”, i.e., government agencies are to release information and documentation that are not subject to an exemption.  Exemptions from disclosure include national security, law enforcement, trade secrets, privacy, internal deliberations, and certain communications between government agencies. Often, a government agency will improperly cite to such exemptions in redacting out or withholding information.  An appeal of a FOIA response or lawsuit can be useful in forcing the agency to disclose that information.

A FOIA request can be a critical tool in overcoming visa denials and visa revocations.  If you are interested in pursuing a FOIA request or are having problems with a FOIA request, please contact us.