We discuss Freedom of Information Act (FOIA) requests, and how they are used in the Phase I Environmental Site Assessment process.
The other week we got talking to some folks who were looking into buying a property, and asked us to conduct a Phase I Environmental Site Assessment. As we got the ball rolling, we let them know we were sending out FOIA requests in a day or so, and got a frantic phone call from them.
What's a FOIA request?!
Despite this one client of ours getting numerous Phase I's in the past, we came to learn that none of the previous environmental professionals they dealt with had ever kept them abreast of the process and what a Phase I actually entailed. Meaning, this was the first time they had ever term FOIA, and had no idea what that entailed.
For anyone who's never heard of a Freedom of Information Act request, FOIA ends up being another odd acronym meaning god-knows-what.
So lets break down what FOIA request are, what they mean, and their purpose.
What is the Freedom of Information Act?
In order to accurately discuss this topic, we need to first look into the Freedom of Information Act. In short, and as described by the FOIA.gov website:
The Freedom of Information Act (FOIA) is a law that gives you the right to access information from the federal government. It is often described as the law that keeps citizens in the know about their government.
In all honesty, that answer is garbage.
Yes, you can get information from the federal government, and yes it does let citizens stay in the know about their government, but it's much more comprehensive than that.
For example, under the Freedom of Information Act, I, as either a citizen, or on behalf of my company, or as a member of an association, or legal counsel, or really anything, can request information from virtually any publically funded agency or governmental entity.
I could send a letter to either the CIA, the EPA, the state Department of Environmental Protection, the county health department, or the local police department, and ask for information that they have on file.
The reality is, the Freedom of Information Act law allows almost anyone to get access to publically available records from virtually any agency or governmental body.
What are FOIA requests?
As you can now see, FOIA stands for Freedom of Information Act. So, a FOIA request is simply when you request information, as per the Freedom of Information Act, from an agency.
Depending on the agency, a FOIA request could be free, or cost money, and might need something as simple as writing a letter asking for information, or something a little more complex like filling out some forms, either on paper or online.
It really depends on where you're requesting information from and how they process the requests.
The million dollar question though, is how long does a FOIA request take, which unfortunately is almost impossible to answer.
We send out dozens of FOIA requests every week for various Phase I projects we're working on. Sometimes we get a response almost immediately (for request done online), while other times we never hear back from an agency at all.
Blame it on bureaucratic red-tape or what-have-you, but the truth is that depending on the agency you're looking to get information from can be relatively quick and painless, to intricate and dragged out over the course of weeks to months.
So when we're conducting Freedom of Information Act requests for Phase I Environmental Site Assessments, we usually tell our clients to give us a month or so to wait to see who we hear back from. Could be soon, and it could be longer, but we generally write off any agency that doesn't respond within a few weeks.
When folks initially hire us, we frequently get asked how long does it take to complete a Phase I Environmental Site Assessment, to which we usually say pretty fast, but when we have to wait for agencies to send us information so we can review files & records, it can take anywhere from a month to two months. The reason it takes so long is out of our hands since we're waiting to hear back from the government.
Generally, we say give us about a month and a half to get everything taken into consideration. That's usually plenty of time to wait to hear from everyone we sent requests to.
But what if we don’t hear back, or haven’t had the chance to review the records before 20 days, or before the Phase I user wants their report in hand? We have to take this into account, and it can become a limitation on the conclusions of the report.
It could in fact become a significant limitation on the conclusion of the Phase I. For example, if we are aware that a state agency has numerous records about past contamination and remediation at a site, but we can’t review the records before a certain date because the user wanted their report by then, then the report conclusions are going to be severely limited, and could in fact change once we get to view the records, even if it’s after the report has been released.
Why are you sending out Freedom of Information Act requests during a Phase I Environmental Site Assessment?
When we conduct a Phase I we have to do a few things which are
- Review governmental records
- Conduct a thorough site inspection
- Discuss property details with anyone we're permitted to
A lot of folks tend to think "we'll tell you everything you need to know" or that the old property owner knows everything about the property. Simply put, 9 out of 10 times that's not the case at all.
The process for a Phase I has to meet certain ASTM standards, one of which requires that a records review be conducted, of all “reasonably ascertainable / standard sources” of record information. In most cases, this means government records, whether they are held by a city, township, county, regional authority, state, or Federal government.
So, when conducting a Phase I ESA we normally send out FOIA requests to a few local, county, and state agencies concerning the property in question. Sometimes we get back a letter saying the agency doesn't have anything, or we'll receive a letter saying 'we don't know what we have, come dig through our archives', or we'll just never get a response and have to follow up with phone calls and visits to said agency.
The ASTM standards require, among other things, while the environmental professional preparing the Phase I ESA is not required to identify, obtain or review every possible record that might exist with respect to a subject property, they are required to review records that are reasonably ascertainable from standard sources of records, within a reasonable time and cost (generally within 20 days of request, and at no more than a nominal cost).
That basically means the environmental professional should review anything they can reasonably get their hands on and see what's going on with your property. So for instance, if the local county environmental department has information about a small oil spill on paper in a box in their archives, the environmental professional should review the information and comment on what they found.
But, if the record in question was being stored off-site 5 hours away and required a hefty sum of money to just get access to the files, then the professional could say it wasn't readily ascertainable, and would have to make recommendations about the property based on other sources.
Now, if you think about it, there are likely a lot of government records about most properties, held by a large number of different government agencies, from local tax and building records, to Federal records of environmental permits held by a facility.
Obviously, we are most concerned through the Phase I process with those records of an environmental nature, or those pertaining to the past historical use of the site, or any other type of record that might point out past or present environmental releases or contamination at the property.
What kind of records are available via FOIA requests?
This depends entirely on who you're asking and what you're asking for.
If you're asking the EPA for information about permit records for a certain company, you'll most likely get what you're looking for.
If you're asking the DOD about detailed information regarding their new stealth fighter being tested at Area 51, chance are your requests will end up in the trash.
Unless the records you're looking for are private, confidential, secret, classified, etc., you should be able to get your hands on virtually anything.
When it comes to Phase I work, we tend to look for health & safety records. All of the records that companies have been submitting to the government are considered to be public knowledge, unless they are confidential or otherwise protected by the government (think documents marked “top secret”). But for the most part, all environmental records, historical records, or other records having to do with a piece of property are publicly available. That's what we're looking for via FOIA requests.
But, there are probably a large number of them at wherever you’re going to search. Most government agencies store thousands, hundreds of thousands, millions of records, and they store them forever! Since most agencies haven't gotten the memo and gone digital, it's going to take them some time to dig out the specific ones you’re interested in since many of them are boxed up in archives somewhere.
What about OPRA or FOIL requests?
Freedom of Information Act requests are generally what everyone calls them, but there's similar things you can also do. For example, there are two (of many) similar ways to request information called OPRA (for Open Public Records Act) and FOIL (for Freedom of Information Law).
These two record requests methods, like several other types, are all pretty much the same thing: a means to make a formal request of the government agency to review any and all records they may have for a specific property.
Always take Freedom of Information Act requests into consideration when considering a Phase I ESA.
The moral of the story? Give yourself some time if you want a good Phase I ESA, since it takes time to dig through records and get to the right information.
Take public records searches into account, and consider the FOIA process that your chosen environmental professional is going through on your account. If you desperately need that Phase I ESA report by a certain date, build in enough time to ensure that this requirement is met, and that you’ll be getting a solid, complete report when done, not one with significant limitations due to unrealistic timeframe requirements.
If you're looking for more information about Phase I work, or want a better understanding of time-frames and steps in the process, click here to contact us online or give us a shout at 609-693-8301 to discuss.