June 28

APPEALING SUBJECTS
BY CRAIG MANSON
A Monthly - Weekend With Shades - Column

That's right; good ol' Uncle Sam has a treasure trove of photographs dating from the earliest days of photography in America and he'll let you have [most of] them at no cost and free of copyright restrictions. You already knew that, didn't you? You know all about the Library of Congress's various collections; you know that the Smithsonian has a Flickr site; and of course you know about the National Archives photo collections.

In fact, those collections just barely scratch the surface of the millions of photographs that the government owns, and which may be available to you. Virtually every government agency from the CIA to the Natural Resources Conservation Service has photographs in their archives that you may be interested in having. So how do you get your hands on Uncle Sam's photo treasures?

John Brown (1800-1859)

The first way is go to a very convenient government site known as USA.gov. This is the government's basic information portal and you'll find a lot of useful things here. On the front page, click on the link that says "Reference and General Government." On this page scroll down to the link that says "Government Photos and Images." Here you'll find a diverse list of government sites that have interesting photographs of all sorts. For example, I found the photograph of abolitionist John Brown on the Harpers Ferry National Historic Park site which I found through USA.gov.

It's probably evident, however, that USA.gov doesn't have every government agency listed there. The sites on this list tend to be those which have photo or image galleries for the convenience of the downloading public. But even a lot of those agency web pages which have photo or image galleries are not listed here. The United States Coast Guard, for example, has several image galleries on its web site, including the one where I found this picture of a Revenue Service cutter. This photograph is believed to be the oldest photograph of a Coast Guard cutter.

USRC Gallatin, photographed in 1855

If you know the type of photograph you're looking for in general, you could simply go to the web site of a government agency which deals in that particular area and see if they have a photo or image gallery. Even if the agency doesn't have a photo or image gallery, it likely has photographs on its web site that you can use. Caveat: you may recall that works of the United States government are not subject to copyright, but are in the public domain. However, not every photograph that you may find on a government web site is necessarily a "work of the United States government." It's possible that you may come across copyrighted images on a government web site. If you want to use a photograph or image from a government web site, check the web site to see the origin of the image or photograph. If such information is not readily available on the web site itself, you may want to contact the webmaster or the agency's public affairs office. If you can't get answers that way you may want to use a different image. In any event, even when using a work of the United States government, it's always a good idea to indicate the source of the photograph.

So could you really get photographs from the CIA? The answer is: maybe. How would you do that? You say the magic word: "FOIA," (pronounced "foy-ah" or "foy-yah"), which stands for "Freedom of Information Act."

Most people have heard of FOIA, but many do not know how it works or the type of information available under FOIA. Many genealogists have used FOIA (even if they didn’t realize it) to get Social Security applications and passport information from the government.

Basically, FOIA requires federal agencies to make available to any person upon request records held by those agencies. The term "records" includes photographs and digital images. The term "agency" does not include Congress or the courts. It also does not include the Office of the President of the United Sates or the Office of the Vice President of the United States.

"Agency records," according to the Supreme Court, are records that are (1) either created or obtained by an agency, and (2) under agency control at the time of the FOIA request. So by definition, there may be photographs subject to release under FOIA which are not works of the United States Government and may be subject to copyright protection. This fact does not prevent their release under FOIA, but may affect the requester's subsequent use. A good argument, however, usually can be made under the "fair use" criteria for photographs which were being held by the government.

"[A]ny person," except a fugitive from justice, or with respect to requests made to intelligence agencies, foreign governments or their agents, can request photographs, images or other information from a federal agency under FOIA.

No special form is required to request a photograph or group of photographs under FOIA. However, a FOIA request should be in writing and must “reasonably describe” the records being sought. The request must be made in accordance with the particular agency’s rules and procedures which can be found on each agency’s website. The rules state such things as where to send the request and what the fees are (more about that later).

In general, the law and regulations favor disclosure of information under FOIA. But there are exceptions to the obligation of a federal agency to disclose information. These include (1) national security information; (2) internal agency personnel rules; (3) information exempted by other laws; (4) trade secrets or confidential business information obtained by the government from another party; (5) internal documents exempt from disclosure in litigation; (6) personnel or medical files the disclosure of which would constitute a clearly unwarranted invasion of privacy; (7) certain law enforcement information; (8) certain banking regulatory information; and (9) geological and geophysical information and data.

The exemptions can become quite complex and several have been the subject of litigation before the Supreme Court. However, don’t let that stop you from making your request for photographs. The agency has to show that an exemption applies. You are not required to state what you intend to do with the photograph that you get from a government agency or why you want it. However, that information may make a difference with respect to the privacy exemption and to the calculation of fees that the agency may charge you (see below).

An agency may charge fees for FOIA requests. There are fee categories set out in the law: (1) Commercial requesters (2) Educational Institutions are required to pay duplication costs, but are entitled to the first 100 pages without charge. (3) Non-Commercial Scientific Institution requesters are required to pay duplication costs, but are entitled to the first 100 pages without charge. (4) News Media requesters are required to pay for duplication, but are entitled to the first 100 pages without charge. There is, in my view, an open question as to whether bloggers are "news media" for the purposes of FOIA. If they are not, then they are probably (5) Other Requesters who do not fit into any of the above categories. These requesters are required to pay search costs for more than 2 hours and duplication costs for more than 100 pages.

In any event, there’s a provision for a waiver of fees, no matter who the requester is. A waiver may granted if the material requested “is likely to contribute significantly to public understanding of the operations or activities of government and is not primarily in the commercial interest of the requester.”

An agency must make a search ""reasonably calculated to uncover all relevant documents," sought by the requester. An agency is supposed to make records “promptly available” after a request. Under the law, an agency has twenty business days to determine if it will comply with the request. If it will comply, the agency must immediately notify the requester and then promptly make the records available. If the agency will not comply, it must notify the requester of a right to appeal–the appeal must be filed within twenty business days of notification. The head of the agency then usually has ten days to decide the appeal.

Civilian Conservation Corps member at Yanceyville, North
Carolina

In reality, most agencies have a backlog of FOIA requests and processing takes considerably longer than the deadlines. You have a right to go to court if the agency misses its deadlines. Additionally, many agencies historically have found FOIA burdensome and a distraction from their core business. This attitude has begun to change slightly, curiously enough with agencies like the CIA and FBI out front. The CIA has a "FOIA Electronic Reading Room" that contains the most frequently requested documents. It has a searchble database of CIA documents previously released. In addition, it has documents that tell the CIA story from its point of view, such as an exhibit on Air America.

The FBI's FOIA Electronic Reading Room is similarly part FOIA-compliance and partly promotional. At the top of the page, it asks:

What do Jackie Kennedy, the Beatles, Albert Einstein, Gracie Allen, Thurgood Marshall, and Walter Winchell have in common?

Give up? They are all part of historical FBI records... though for a variety of different reasons.

Many of the photographs in the FBI files are difficult to make out, but this one of bank robber Bonnie Parker is pretty clear!

Although the FOIA procedures can seem cumbersome, in most cases they are not. There are numerous FOIA websites that describe the procedures and give examples. I would advise, however, to check if the photographs you’re seeking are available without a FOIA request, such as from the National Archives or the Library of Congress.

What if in a moment of sheer paranoia or rank narcissism, you wonder if the Government has got pictures of you? Or may be you know they do? Then you can make a request for these photos under the Privacy Act. The FBI website has a form for this purpose and the same information would do for any other agency.

By the way, if under FOIA you request photographs of living, non-public persons, an agency may ask you to submit a Privacy Act waiver from the individuals depicted in the photographs.

Another way to find government photos is to use Google Images with the Advanced Search parameter limited to the .gov domain . You can do this by typing "site:.gov" (without the quotation marks) after your search term, or by placing ".gov" (again without the quotation marks) in the box labelled "Search within a site or domain" under the Advanced Search link.

There are literally millions of photographs of just about any subject in the world which are in the possession of the United Sates government. Have a good time rummaging around Uncle Sam's photo collections!

Image Credits

1. Uncle Sam Poster (image edited by Craig Manson):

2. John Brown: Photographer unknown; taken prior to the raid on Harpers Ferry. 1858. Historic Photo Collection, Catalog No. hf-0789 Harpers Ferry NHP, National Park Service, U.S. Department of the Interior. Available at http://home.nps.gov/applications/hafe/detail.cfm?Image_No=hf-0789 (accessed 24 Jun 2009)

3. (Original of this photo is in the custody of the Historical Society, Newport, R.I.)."; photographer unknown; copy of image in Gallatin cutter file, USCG Historian's Office. Available at http://www.uscg.mil/history/webcutters/USRC_Photo_Index.asp (accessed 24 Jun 2009).

4. CCC Enrollee: Record Group 35, Special Media Archives Services Division, National Archives & Records Administration, College Park, MD. Available at http://www.la.nrcs.usda.gov/partnerships/ccc.html (accessed 24 Jun 2009).

5. Bonnie Parker: Federal Bureau of Investigation, case file no. 26-4114, Subsection A, pg 14. Available at http://foia.fbi.gov/bonclyd/bonclyd1a.pdf (accessed 24 Jun 2009).