Notice

Due to the current coronavirus pandemic, we may experience delays in our ability to process your FOIA request. During this emergency, we will process your request as expeditiously as possible. It is always easier to process requests that are tailored to specific documents so you may want consider that in your request. Please feel free to narrow any request you submit. We apologize for any delay and appreciate your understanding during these trying times.

Office of Counsel

The Office of Counsel gives timely and innovative advice and representation in the areas of procurement, environmental, tort, admiralty, labor law and statutory construction.  This  page contains materials and references that may be helpful to persons seeking information about the Corps of Engineers legal services programs, such as the areas of practice within the Office of the District Counsel, the District Counsel's office directory, FOIA, the Claims program, legal services publications and forms, and links to other government legal websites.
 
This is an official US Government webpage. This webpage is intended to provide information of general interest to the public. The information contained herein is accurate as of the date of publication. The answers herein are of a general nature and are not fact specific. The answers to specific legal questions depend, in part, on the facts involved in the situation at issue. If you have any questions not answered on this website, please feel free to contact us directly.

Freedom of Information Act (FOIA)

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 About the Freedom of Information Act (FOIA)

 FOIA is a Federal law that establishes the public's right to request existing records from Federal Government agencies. Requests are only for agency "records." The agency is not required to create documents in response to a request. FOIA, which is known by its legal cite as 5 U.S.C. § 552, along with the Department of Defense and Army Regulations, govern how requests will be processed within the Army. The Army Regulation (AR) 25-55, The Department of the Army FOIA Program, can be found at Part 518 of Chapter 32 of the Code of Federal Regulations, which is available in most libraries. AR 25-55 may also be purchased from the National Technical Information Service (NTIS), 5285 Port Royal Road, Springfield, VA 22161, for $21.50, and may be found in the Army’s Electronic Reading Room at http://www.apd.army.mil/pdffiles/r25_55.pdf

 How do I request documents under the FOIA?

You can request documents under the FOIA by fax, letter, or electronic mail.  No special form is required; however, the request should be labeled as a "Freedom of Information Act Request," and must include the following information:

1. Name and Business name (if applicable);
2. Address;
3. Telephone number;
4. Fax number (if applicable);
5. A reasonable description of the records requested, including date parameters, if applicable;
6. Whether you want to view the documents or have them copied and sent to you;
7. State a willingness to pay any search and review fees; and
8. If you are requesting a fee waiver, you must state your basis for the waiver.

 Where should I send a FOIA request?

Requests should be submitted to the FOIA Office for the Corps of Engineers division, district, center or laboratory that you believe has the documents you are seeking. Each of these FOIA Offices process requests for their own records. Directing your request to the local office that has the documents you want, will speed up our response to your request. For a list of all FOIA Offices, click here: http://www.usace.army.mil/FOIA/Offices.aspx

When requesting records from the Vicksburg District, our FOIA Contact information is:

FAX REQUESTS: To fax a FOIA request, include a fax cover-sheet stating, "Attention: FOIA Coordinator."  The fax number is 601-631-5073

ELECTRONIC MAIL: To send a FOIA request by electronic mail, address the request to: FOIA-MVK@USACE.Army.mil

REGULAR MAIL: To mail a FOIA request, send the request to the following address:

MVK-OC (FOIA)

C/O Vicksburg District

Suite 240

4155 Clay St

Vicksburg, MS 39180

 Who can file a FOIA request?

Any person can file a FOIA request, including U.S. citizens and foreign nationals, Organizations, universities, businesses, and state and local governments may also file FOIA requests.

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

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.

 What is an agency record?

Agency records are those that are created or obtained by an agency and under the agency control at the time the FOIA request is made.  Agency records include hard-copy files, computerized records, databases, e-mail maps, books, and photographs.

 Can I ask questions under the FOIA?

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. However, if there exists records which would respond to questions, those records would be provided.

 Must I use FOIA to obtain all agency records?

No.There is no requirement for individuals to use FOIA to obtain routine public information, such as copies of contracts, daily stages of waterways, and issued permits.  Such requests may be processed by the custodian offices without involvement of the FOIA Coordinator.  Additionally, the Vicksburg District's website at http://www.mvk.usace.army.mil provides access to a wide variety of public information regarding our projects, contracts, regulatory program.

 What are reasons for not releasing a record?

There are seven reasons why the Army may not release a record requested under FOIA.  They are:

1. The request is transferred to another Army Component or Federal agency;
2. The Army Component determines through knowledge of its files and reasonable search   efforts that it neither controls nor otherwise possesses the requested record;
3. A record has not been described with sufficient detail to enable the Army Component to locate it by conducting a reasonable search;
4. The requester has failed unreasonably to comply with procedural requirements, including payment of fees, imposed by the FOIA and AR 25-55;
5. The request is withdrawn by the requester;
6. The information requested is not a record within the meaning of the FOIA and the AR 25-55; or 7. The record is denied in whole or part in accordance with procedures set forth in the FOIA and AR 25-55.  (See FOIA exemptions, below)

 What are FOIA exemptions?

There are nine FOIA exemptions, described in 5 U.S.C. 552(b) (1)-(9).

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

 What is a denial?

When information is withheld, whether partially or fully, this constitutes a denial under FOIA.  A request may be denied for one or more of the aforementioned exemptions.  When this happens, you will be notified in writing by an Initial Denial Authority (IDA) and given appeal rights.  IDAs are denial authorities for records that fall under their custodial control.  If your request is denied partially, you will receive information that has portions deleted.  Redacted records have the denied information removed from where it was originally located within the document.  The appropriate exemption(s) for deletion of the information should be listed next to the sanitized area(s) on the document.  There are usually two methods for sanitizing a document; one is to blacken out the denied information, and the other is to completely remove it.

 Can I appeal a denial?

Yes. If your FOIA 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 within 60 days.  If you are not satisfied with the appeal determination, you may seek  judicial review.

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

Whenever possible, an initial determination to release or deny a record will be made within 20 working days after receipt of the request by the official who is designated to respond. Because of the significant number of requests received, in fairness to all requesters, the New Orleans District processes requests in the order of their receipt and according to their complexity.  If unusual circumstances exist that preclude a timely response, you will be informed of the estimated completion date and reason(s) for delay.  Unusual circumstances are:

1. Need to search for and collect the requested records from other facilities that are separate from the office determined responsible for a release or denial decision on the requested information;
2. The need to search for, collect, and examine a voluminous amount of separate and distinct records which are requested in a single request; or
3. The need for consultation, which shall be conducted with all practicable speed, with other agencies having a substantial interest in the determination of the request, or among two or more DOD Components having a substantial subject-matter interest in the request.

 How do I qualify for expedited processing of my request?

To receive expedited processing, the requester must demonstrate one of the following compelling needs:

1. Failure to obtain the records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;
2. Information is urgently needed by an individual primarily engaged in disseminating information in order to inform the public concerning actual or alleged Federal Government activity; or
3. Other reasons that merit expedited processing are an imminent loss of substantial due process rights and humanitarian need.

 Do I have to pay for a FOIA request?

FOIA allows fees to be charged for FOIA services, such as search and review time, duplication costs, and special services, like document certification.  Whether fees are charged depends on the category of requester you are.  If fees are to be charged, waivers or reductions in fees may be given under certain circumstances.  In any case, no fees are charged to any requester if the amount to be charged does not exceed $15.

 What are the categories of requesters and how are their fees determined?

There are five categories of requesters:

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. A 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 publicize 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. The first 100 pages are provided at no cost.

"Other" Requester. 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 time, all review costs, and the first 100 pages at no cost.

 When and how can fee waivers be granted?

Fee waivers may be granted when disclosure of the records is in the public interest.  Information released in the public interest is defined as information that significantly enhances the public's knowledge of the operations and activities of the agency. 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; and
The ability of the requester to disseminate the information.

 What is a "willingness to pay statement"?

All requesters must include a "willingness to pay statement" in their request, regardless of the fee category, however, this does not mean you will be charged fees.  The requester can set a limit on the costs to be incurred. For example, he/she may state "not to exceed $50." If the estimate for answering the request exceeds the limit, the FOIA Officer will call the requester to discuss his/her options. The requester has four options: accept the copied documents up to the previous specified amount of money; cancel the entire request; authorize the money needed to complete the request; or authorize additional funds up to another specified amount. Except for commercial requesters whose fees total more than $15, waivers are always considered. 

Please contact the Vicksburg District FOIA Coordinator if you have any further questions.

Other Information and Requests

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 Filing a claim against the Army Corps of Engineers under the Federal Tort Claims Act

For a claim of personal injury or property damage, that a person alleges has been caused by the negligent acts of an employee of the United States Government, federal law requires that the claimant file a written claim with the appropriate federal agency, in this case the U.S. Army Engineer District, Vicksburg, Mississippi. The applicable law in this instance is the Federal Tort Claims Act, 28 United States Code § 2671 et seq. A standard form should be used to submit a claim under the Tort Claims Act. A copy may be obtained and printed by clicking Form SF-95.

A claim against the United States, in particular against the U.S. Army Corps of Engineers, must be presented, in writing, within two years from the date that the cause of action occurred. The written claim must indicate the date and location at which the alleged negligent act/damage occurred. The written claim must include a specified "sum certain" amount of monetary damages that you seek from the government. You should state in your claim the damage that has occurred, and should state how you contend that the damage occurred (i.e., what acts of a government employee occurred that caused the damage you seek compensation for). If the claim is for personal injury or property damage, you should submit information that would substantiate your claim. Medical Records, estimates of repair, etc., should be submitted, along with any other documentation you think would support your claim.

Once the claim is received, this agency will have six months from the date of receipt in order to investigate and adjudicate your claim. It is possible that, if warranted, an administrative settlement could be negotiated with you. It is also possible that the claim could be denied. During the six months from the date of receipt of your written claim by the agency, you cannot file a lawsuit against the United States of America. A lawsuit against the United States cannot be filed until the following occurs:

1) Upon receipt of a final, written decision from the Agency, the claimant will have six months from the date of the decision in order to file suit;

2) Upon the expiration of six months from the date of receipt by the Agency of the claim, if no written final decision has been issued by the Agency, the claimant may, at his or her option, treat the inaction of the agency as a final denial, and proceed to file suit.

Exclusive jurisdiction against the United States for suits filed under the Federal Tort Claims Act lies with the appropriate United States District Court. Any lawsuit filed under the Federal Tort Claims Act must name the "United States of America," and not the particular agency, as the defendant.

 Touhy Request - Requesting Witnesses or Documents for Private Litigation

Under 32 CFR §§ 97.6(c), 516.40, and 516.41, the Army must authorize the appearance of its personnel or the production of official documents in private litigation. The Army cannot authorize its employees to appear absent the following:

You must request in writing the employees appearance in accordance with Department of Defense directives, 32 CFR § 97.6(c), and Army regulations, 32 CFR §§ 516.40 - 516.57. The request must include the nature of the proceeding and the nature and relevance of the official information sought. Id. § 516.41. The written request must be received no later than 14 days from the date of any intended testimony. We cannot act upon your request until we receive the required information. See for example, United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951); Boron Oil Co. v. Downie, 873 F. 2d 67 (4th Cir. 1989).

Please furnish this office with a written statement setting forth a detailed summary of:

1) The name of the employee you seek to testify;
2) The testimony you seek to elicit from the employees;
3) The nature of the proceedings and the relevance and importance of the testimony to the proceedings; and
4) The extent to which the testimony is available from other sources.

Please provide this written summary as soon as possible. By virtue of Touhy v. Ragen, 340 U.S. 462 (1951), the Supreme Court has recognized the authority of agency heads to restrict testimony of their subordinates.

In addition to the above requirements, each employee’s supervisor must approve their absence from duty so that their absence does not interfere with the mission. See 32 CFR § 516.50. In any event, should they be authorized to appear, you must subpoena them and pay all travel expenses, as this is purely private litigation and the witness' appearance must be at no expense to the United States. See Id. § 516.55(c).

Finally, should any of the employees appear as a witness, they may give factual testimony only. They may not testify as an opinion or expert witness. This limitation is based on Department of Defense and Army policy that generally prohibits Government employees from appearing as expert witnesses in private litigation. See Id. § 97.6 (e), § 516.49.