Freedom of Information Act

What is the Freedom of Information Act?

Representative John E. Moss originally championed the idea of the Freedom of Information Act in 1955, though it would be 1966 before President Lyndon B. Johnson begrudgingly signed the law in 1966.

The Freedom of Information Act (FOIA) is a federal act signed into law by President Lyndon Baines Johnson in July 1966 that grants any person, including United States citizens, foreign nationals, associations, organizations, and universities the right to obtain information from federal government agencies. The FOIA, codified at 5 U.S.C. Section 552, provides persons with the statutory right, enforceable in court, to access government information except those withheld pursuant to the nine exemptions and three exclusions contained in the Act.

The Freedom of Information Act (FOIA) creates a presumption that records in the custody of executive branch agencies and departments are available to the public. Prior to the 1966 enactment of the FOIA, it was the requester's responsibility to establish a right to inspect these government records. Before the FOIA, there were no established formal rules or processes to assist persons seeking information or legal recourses available to individuals denied access to federal records.

The FOIA moved the burden of proof from the person seeking access to a record to the government. Individuals requesting information are no longer required to demonstrate a need for the information. Rather, the "need to know" standard has been substituted with a "right to know" rule. Now, the government has to justify the need for secrecy.

The implementation of the FOIA's exclusions is generally permissive - to be used only if the requested records include information that merits protection - rather than required. Consequently, when evaluating whether to withhold a document or group of documents under one of the FOIA exemptions, an agency may withhold such records only when the agency reasonably anticipates that disclosure will jeopardize an interest protected by the exemption.

Although enacted in 1966 following a 12-year struggle to obtain Congress passage of the law, the FOIA has been amended severally. In 1974, the Act was amended after the Watergate scandal to force greater compliance by federal agencies. Another modification to the Act was made in 1986 to offer wider exemption protection for law enforcement information, and another in 1996 to provide for greater access to electronic information. The 2007 Open Government Act implemented routing, tolling, and fee provisions amendments to the FOIA. In a 2009 amendment, President Obama issued a memo to all agency heads instructing federal departments not to withhold information due to speculative fears of potential errors that may be found in requested records. Several other amendments have followed, such as a recent modification requiring federal agencies to submit to the Attorney General on February 1 of each year, an annual report detailing agency-specific FOIA data. Examples of the data expected to be included in the annual report include the number of FOIA requests received, the number of determinations made, the number of appeals, and the total fees collected for processing requests.

The FOIA was established to enhance people's trust in the government. The Act seeks to reinforce transparency and accountability in government. It is the United States government's viewpoint that the effective functioning of the nation's constitutional democracy relies on the participation in public life and government of citizens that are well informed.

What is Covered Under the Freedom of Information Act?

Gerald Ford signed the Privacy Act of 1974, in response to concerns about how the creation and use of computerized databases might impact an individuals' privacy rights.

FOIA applies only to agency records of the departments and agencies of the federal executive branch. Agency records covered under the FOIA are records created or obtained by an agency and records under the agency's control when a FOIA request was made. Broadly, an agency record includes paper documents, photos, tapes, and electronic records generally in the control or possession of an agency. Agencies within the federal executive branch include the Executive Office of the President, and independent regulatory agencies. Note that state government, municipal corporations, Congress, the courts, and private citizens are not covered under the federal Freedom of Information Act.

Since FOIA only covers agency records, federal agencies are not obligated to disclose personal records publicly. Personal records are records kept by agency personnel but not for official use by the agency. When assessing whether a record is personal, an agency will examine these three factors:

• The purpose of the document
• The extent to which the record was integrated into the agency's filing system; and
• The degree to which the record's author or other staff used the record to conduct agency business.

In determining whether a record is an agency record under the FOIA, an agency will consider the following factors:

• The record creator's intent to retain or relinquish control over the record
• The ability of the agency to use and dispose of the record as it sees fit
• The extent to which agency personnel read or relied on the record
• The extent to which the agency integrated the record into its record-keeping system or files.

What Records are Exempt from the Freedom of Information Act?

Pursuant to 5 U.S.C. § 552(b)(1)-(9), records that come under one of the following nine statutory FOIA exemptions are exempted from public disclosure:

• Information that has been lawfully classified as secret for national security or foreign policy objectives in accordance with executive order
• Information pertaining primarily to the agency's own personnel policies and procedures
• Records that are expressly exempt from disclosure under a statute other than FOIA if that statute requires that the information be withheld from the public in a manner that leaves no discretion on the issue; establishes specific criteria for withholding information or refers to specific types of information to be withheld; or expressly refers to this exemption (if the statute is enacted after the enactment date of the OPEN FOIA Act of 2009)
• Trade secrets and privileged or sensitive business or financial information obtained from a third party
• Inter- or intra-agency memos or letters that are not accessible to an agency unless in the course of litigation
• Personnel, medical, or similar records whose disclosure would constitute an unwarranted violation of personal privacy
• Certain types of records gathered for law enforcement purposes
• Certain types of information pertaining to the examination, operation, and condition reports prepared on behalf of, by, or for the use of any agency tasked with the supervision or regulation of financial institutions.
• Geological and geophysical data and information

The FOIA also exempts three special categories of law enforcement-related records from disclosure:

• Investigations related to possible violations of criminal law
• Confidential Informant records
• National Security Investigations

How Do I File a Freedom of Information Act Request?

The first step in initiating a FOIA request is identifying the agency that is the custodian of the record you seek. The FOIA request must be directed to that particular government agency. There is no centralized government records office tasked with handling FOIA requests.

Often, a requester knows in advance which agency is the custodian of the records they seek. If this is not the case, a requester might reference a government directory, such as the United States Government Manual. The guidebook contains a complete list of all federal agencies, a description of their activities, and their addresses.

FOIA requests must be made in writing to agencies. Request letters pursuant to the FOIA must be brief and straightforward. An attorney is not required to file a FOIA request. The request letter must be written to the agency's FOIA officer or the agency's head. In the bottom left-hand area of the envelope enclosing the written request, write "Freedom of Information Act Request." The letter must:

• Express that the request is being made under the Freedom of Information Act
• Identify the records being requested as precisely as possible
• The name and address of the requester

Optional information that may be included in the request letter include:

• The telephone number of the requester: The record custodian processing the request may find the telephone number helpful in communicating with the requester if necessary.
• Limitation on the potential fees: It is usual for a requester to request that the costs be advised in advance if the charges would surpass a certain amount. If the cost is too high, the requester may amend or withdraw the request. Furthermore, by declaring a willingness to pay a fixed number of fees in the first request letter, a requester may prevent the need for additional correspondence and delay.
• Request for full or partial fee waivers: Per the FOIA, fees must be waived or reduced if disclosure of the requested record is in the public interest.
• Specification of the format in which requested material is sought.
• A statement requesting expedited processing by establishing a "compelling need.": Under the FOIA, a verified compelling need will likely result in an expedited response to a FOIA request.

The following are examples of filing FOIA requests in the United States:

The Federal Electoral Commission (FEC): You may file a FOIA request to the FEC by email, fax, or mail:

Email: FOIA@fec.gov
Fax: (202) 219-1043
Mail: Federal Election Commission

Attn:
FOIA Requester Service Center
1050 First Street, NE
Washington, DC 20463

You may use the sample request letter template provided on the FEC website to complete your request.

Bureau of Labor Statistics: You may complete your BLS FOIA request by email, fax, or mail:

Email: foiarequests@dol.gov

Fax:
Bureau of Labor Statistics
FOIA Disclosure Officer
(202) 691-5111

Mail:
U.S. Department of Labor
Bureau of Labor Statistics
FOIA Disclosure Officer
Room 4080 Postal Square Building
2 Massachusetts Avenue, N.E.
Washington, DC 20212-0001

United States Department of Agriculture: Use the USDA Public Access Link (PAL) to create, submit, and track the status of your FOIA request. You may also view the FOIA division page of the USDA website to verify the specific steps to obtain FOIA records from the different components or sections of the USDA. If you cannot determine which USDA component or agency is the custodian of the record you want, address your FOIA request to USDAFOIA@usda.gov.

What is the Cost of a Freedom of Information Act Request?

Requesters may be required to pay some or all of the cost incurred in processing their FOIA requests. First, federal agencies may impose fees to recover the cost of copying documents. Typically, all agencies have a fixed fee for making copies using copying machines. Requesters are usually charged the actual cost of copying computer tapes, photographs, and other nonstandard documents. Second, fees may be imposed to reimburse the costs of searching for documents to the record custodians. While the FOIA does not require agencies to create documents that do not exist, the fees charged for searching for documents include the period taken to look for materials responsive to a request. Third, fees may be charged to recover review costs. A review refers to examining a record to determine whether any portion is exempt from disclosure. Review costs are only charged to commercial requesters and do not include any costs incurred in resolving issues of policy or law that may arise while processing a request.

Varying fees apply to FOIA requesters depending on their categories. The three categories of persons that may request agency records under the FOIA are:

News Media Representatives and Educational or Noncommercial Scientific Institutions: This category of requesters are not seeking to obtain agency records for commercial purposes and can only be billed for reasonable standard document duplication costs. A request from a news media representative is not deemed to be for commercial purposes if it supports news collecting or dissemination. Educational or scientific institutions whose purpose for requesting an agency record fall under scholarly or scientific research are also covered under this category

Commercial Users: Although commercial use of agency records is not defined under the FOIA, it generally includes profitmaking activities. A commercial user may be charged reasonable standard charges for document duplication, search, and review.

Personal Users: This category includes any requester not under the first two categories. Persons seeking agency records for personal use, public interest entities, and nonprofit organizations are examples of requesters covered in this category. Fees charged for these persons are limited to reasonable standard charges for record duplication and search. Review fees may not be charged.

Small requests (typically involving search and review of up to 100 pages of document and 2 hours of search time) are free for personal-use requesters and persons who fall under the news media representative and non-commercial category. Regardless of the category of the requester, the FOIA prohibits agencies from charging fees if the cost of collecting the fee is higher than the amount collected. Hence, if the allowable charges for any request under FOIA are small, no fees are levied. Each federal agency sets its own charges for search, review, and duplication based on its own costs. Also, each agency sets its own threshold for minimum charges. Per 5 U.S.C § 552(a)(4)(A)(v), no agency may require a requester to pay any fee in advance, except if the requester has previously failed to pay fees on time, or the agency has determined that the fee will exceed $250.

Per the FOIA, fees must be waived or reduced if the disclosure of the information is in the public interest. Disclosure is deemed to be in the public interest if the information is expected to add considerably to public awareness of the government's operations or activities and is not mainly for the requester's commercial benefit.

How Long Does it Take to Respond to a Freedom of Information Act Request?

Once an agency receives a properly filed FOIA request, the agency has 20 working days, excluding legal holidays, Saturdays, and Sundays, to respond. However, in "unusual circumstances," an agency may seek an extension of the 20-day time limit for processing a FOIA request. If an extension is required, the agency must inform the requester in writing of the rationale for the extension and indicate a date by which the request will be determined. The extension may be for an additional 10 working days.

According to the FOIA, an "exceptional situation" occurs when there is a need to:

• Locate and gather records from multiple offices;
• Review a large volume of information needed for the record requested; or
• Approach another agency or section of the agency functioning as the record custodian Under exceptional circumstances, an agency may, at its discretion, expedite the FOIA request process. Furthermore, an agency must decide whether to approve a request for expedited access within 10 calendar days after receiving the request. If an expedited request is granted, the FOIA request will be given priority and processed as soon as practicable.

If a requester proves a "compelling need," an agency is obliged to expedite the processing of the request. A requester may demonstrate a "compelling need:"

• By demonstrating that failure to obtain the records quickly may reasonably be expected to pose an imminent threat to an individual's life or physical safety; or
• If the requester is someone who primarily disseminates information and establishes that there is an urgency to notify the public of an actual or purported federal government activity.

A person who is denied access to federal agency records, in whole or in part, may appeal to the agency's head for reconsideration. A federal district court appeal may be filed for additional review if an agency appeal is dismissed. Additionally, the NARA's Office of Government Information Services (OGIS) offers mediation services to settle disputes between people filing FOIA requests and administrative agencies as a non-exclusive alternative to litigation. Note that OGIS services are advisory in nature and are not legally binding.