By Taylor Holliday, Contributing Writer
Table of contents
The Privacy Act
Eligibility & costs to use FOIA
How to get started
Information that can, can’t be obtained through FOIA
How to file a FOIA request
FOIA request processing time
Common pitfalls & how to avoid them
Filing an administrative appeal
Filing a judicial appeal
FOIA report cards:
The Freedom of Information Act is the federal law, enacted in 1966, that makes government information accessible to the people. The law is based on the presumption that individuals have a right to know what their government is up to and that government agencies have a duty to provide full disclosure of all records that are not specifically and reasonably exempt.
FOIA applies to all 15 departments (Education, Homeland Security, etc.) and 73 other federal agencies (Environmental Protection Agency, Federal Reserve System) in the executive branch of the U.S. government. It does not apply to the president, Congress or the courts. It does not apply to state governments (though each of the 50 states has its own freedom-of-information laws, as do many cities). (See Freedom of Information Act federal statute.)
The act lays out what kinds of information agencies must publish as a matter of course — both in print and, thanks to a 1996 amendment, the Electronic Freedom of Information Act (EFOIA), electronically on their Web sites. It also grants individuals the right to request copies of records not normally prepared for public distribution, and sets standards for determining which records must be made available.
It specifies what kinds of records may be withheld from disclosure by agency discretion through its nine exemptions and three exclusions.
FOIA outlines the procedures individuals should follow for requesting records and for appealing the decision if information is denied. It also establishes the right to judicial remedies if an agency does not comply with the law.
The Privacy Act
The Privacy Act of 1974 works in tandem with FOIA to regulate federal agency records about individuals, restricting the disclosure of personal information that might violate privacy while allowing individuals access to records about themselves.
Because the two acts overlap but have different exemptions, information may be released under one while being exempt from disclosure under the other. When seeking information about oneself, an individual should file a request citing both acts in order to get the fullest possible disclosure. A requester seeking information that is not exclusively about himself or herself should cite FOIA only. Agencies generally treat Privacy Act requests the same as FOIA requests administratively.
Eligibility & costs to use FOIA
Anyone, anywhere, for any reason can request information from the government under FOIA. That includes individuals (including foreign citizens), partnerships, corporations, associations, and domestic or foreign governments (with newly enacted exceptions). However, the act does assign requesters to different categories in order to determine fees and fee waivers. Each agency sets its own fee schedule.
The first category of requester includes representatives of the news media; educational institutions; and noncommercial scientific institutions. This type of requester pays only standard document-duplication charges. Journalists, authors and scholars are also the requesters most normally eligible for a fee waiver, if the information they request is “likely to contribute significantly to public understanding of the operations or activities of the government,” and if they have the ability to disseminate that information to the public.
The second category includes public-interest groups; nonprofit organizations; and individuals seeking information for personal use. These requesters are assessed fees for document duplication and for the time it takes to carry out the search.
The final category involves requests made for commercial use, or for “profit-making activities.” These requesters are subject to fees for document duplication and search time as well as the time required to review the documents to determine if any portion of them is exempt from disclosure.
No fee is charged for noncommercial requests that are relatively simple — requiring less than two hours’ search time and fewer than 100 copied pages.
How to get started
The first step in acquiring information from the government is to determine which department or agency holds the information you seek. There is no centralized office that processes or coordinates Freedom of Information requests, so the requester must go directly to the appropriate agency. However, the Department of Justice does act as a centralized source for information about FOIA and for locating all federal government departments and agencies.
After you’ve located the appropriate agency, the next step is to determine if the information you’re seeking is already available on that agency’s Web site. In addition to their various publications and reports, all agencies publish a certain amount of information prescribed by FOIA and make it available both in print in their reading rooms and in electronic form on their Web site “reading rooms.”
This information includes: (1) descriptions of agency organization and office addresses; (2) statements of the general course and method of agency operation; (3) rules of procedure and descriptions of forms; (4) substantive rules of general applicability and general policy statements; (5) final opinions made in the adjudication of cases; (6) statements of policy and interpretations adopted by an agency, but not published in the Federal Register; and (7) administrative staff manuals that affect the public.
FOIA also specifies that agencies publish in their reading rooms copies of records released in response to FOIA requests that have been or will likely be the subject of additional requests, as well as an index of those previous FOIA releases.
Even if you do not find the information you are looking for in the reading rooms, the frequently requested records at many agencies can make for interesting reading. (For example, the FBI’s reading room includes, in the Famous Persons category, scanned copies of original documents about everyone from Albert Einstein to Elvis Presley to John Wayne. The Unidentified Flying Objects category includes 1,600 pages of government documents.)
Other guides to assist your search:
Information that can, can’t be obtained through FOIA
Most agencies’ FOIA Web sites have an index to the information published there and give an idea of what kinds of additional information can be requested through FOIA.
“The Securities and Exchange Commission (SEC) maintains public and non-public records. Public records, such as registration statements and reports filed by regulated companies and individuals, SEC decisions and releases, staff manuals, no-action and interpretive letters, and public comments on proposed rules, are available through the Public Reference facilities located at SEC Headquarters (Conventional and Electronic Reading Rooms). You need not send a FOIA request to obtain public records. A FOIA request is required to obtain non-public records, such as records compiled in investigations, consumer complaints, and staff comment letters. We will release non-public records, unless the record is protected by one of nine FOIA exemptions. If we can reasonably segregate or delete exempt information from a requested record, we will release to you the rest of the record.”
“All agency records must be made available to the public under the FOIA, except for records which are: 1. properly classified as secret in the interest of national defense or foreign policy; 2. related solely to internal personnel rules and practices; 3. specifically made confidential by other statutes; 4. trade secrets and commercial or financial information which is obtained from a person and is privileged or confidential; 5. inter-agency or intra-agency memoranda or letters, except under certain circumstances; 6. personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; 7. records or information compiled for law enforcement purposes, the release of which (a) could reasonably be expected to interfere with enforcement proceedings, (b) would deprive a person of a right to a fair [trial] or impartial adjudication, (c) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (d) could reasonably be expected to disclose the identity of a confidential source, (e) would disclose investigative techniques, and/or (f) could reasonably be expected to endanger the life or physical safety of any individual; 8. information contained in or related to certain examination, operating, or condition reports concerning financial institutions; 9. certain information concerning gas or oil wells.”
FOIA further states that “any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.”
For a discussion of current case-law interpretations of the exemptions, see the 2009 “Justice Department Guide to the Freedom of Information Act.”
Each federal agency compiles an annual report detailing its compliance with FOIA that lists the basis for each request denied during the year. (The DOJ keeps all departments’ and agencies’ annual reports on its Web site.)
Most requests denied either fully or partially fall under one of the nine exemptions in the act.
For example, the Department of Homeland Security’s FY 2003 report stated:
“The most common reasons reported by DHS components for not granting requests were: 1) the records were exempt from release under FOIA Exemption 6 (personal records whose release would be a clearly unwarranted invasion of personal privacy); 2) the records were exempt from release under FOIA Exemption 7C (records compiled for law enforcement purposes whose release could reasonably be expected to invade personal privacy); and the records were exempt from release under FOIA Exemption 5 (inter-agency or intra-agency memoranda or letters).”
The DHS also cited Exemption 3 (a separate federal statute prohibiting the disclosure of a certain type of information) and listed the other statutes it relied on to withhold records, including 8 U.S.C. 1160(B)(6) Information on Special Agricultural workers and 8 U.S.C. 1304(B) Registration of Aliens.
Though the nine exemptions allow agencies to withhold certain information, they do not require that they do so. Above all, FOIA mandates that agencies provide the fullest possible disclosure of information. So even if information qualifies under an exemption, the agency may use its discretion to release it if disclosure would not cause any foreseeable harm.
That goes for classified documents as well, which may be requested under FOIA, obliging the agency to review them to determine if they still require protection. Alternatively, one can make a formal request to have information declassified. (See “FOIA report card — classification reports,” below.)
The Department of Transportation, for example, offers this basic guide:
“Your request must be in writing and include the following information:
If you are mailing the request, please mark prominently on the envelope ‘FOIA Request.’ “
The Internal Revenue Service offers these helpful hints:
“FOIA requires that each request reasonably describe the records being sought. Each request must be specific enough to permit an employee of the IRS to reasonably ascertain exactly what records are being requested and locate them. Many people include their telephone number with their requests. Some questions about the scope of a request can be resolved quickly when an IRS Disclosure Officer can call the requester to clarify the request. Sometimes, IRS will help a requester identify a specific document that contains the information being sought. Requesters should make requests as specific as possible. If a particular document is required, it should be identified precisely, preferably by date and title. However, a request does not always have to be that specific. A requester who cannot identify a specific record should clearly explain his or her needs. A requester should make sure, however, that a request is broad enough to include all desired information, but narrow enough to be practical.”
The Committee on Government Reform’s “Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records” includes this sample FOIA request letter in the appendix:
Agency Head [or Freedom of Information Act Officer]
Name of Agency
Address of Agency
City, State, Zip Code
Re: Freedom of Information Act Request
Dear —— :
This is a request under the Freedom of Information Act. I request that a copy of the following documents [or documents containing the following information] be provided to me: [identify the documents or information as specifically as possible].
In order to help to determine my status for purposes of determining the applicability of any fees, you should know that I am [insert a suitable description of the requester and the purpose of the request. Sample requester descriptions: a representative of the news media affiliated with the —— newspaper (magazine, television station, etc.), and this request is made as part of news gathering and not for a commercial use. affiliated with an educational or noncommercial scientific institution, and this request is made for a scholarly or scientific purpose and not for a commercial use. an individual seeking information for personal use and not for a commercial use. affiliated with a private corporation and am seeking information for use in the company’s business.]
[Optional] I am willing to pay fees for this request up to a maximum of $—-. If you estimate that the fees will exceed this limit, please inform me first.
[Optional] I request a waiver of all fees for this request. Disclosure of the requested information to me is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in my commercial interest. [Include specific details, including how the requested information will be disseminated by the requester for public benefit.]
[Optional] I request that the information I seek be provided in electronic format, and I would like to receive it on a personal computer disk [or a CD-ROM].
[Optional] I ask that my request receive expedited processing because ——. [Include specific details concerning your ”compelling need,” such as being someone ”primarily engaged in disseminating information” and specifics concerning your ”urgency to inform the public concerning actual or alleged Federal Government activity.”]
[Optional] I also include a telephone number at which I can be contacted during the hours of —–, if necessary, to discuss any aspect of my request.
Thank you for your consideration of this request.
City, State, Zip Code
Telephone number [Optional]
The Reporters Committee for Freedom of the Press has a user-friendly letter generator on its Web site. It prompts you for all relevant information about your request and drafts the letter for you, then allows you to edit it before saving or printing. You must e-mail or mail it yourself.
FOIA request-processing time
Once the right agency (or component of an agency) has received a complete and perfected request, it has 20 working days to respond with its determination of whether to grant the request. If information is denied in full or in part, the agency must give the reasons for the denial by this deadline. If granted, it does not have to deliver the applicable documents within the timeframe, but must do so promptly thereafter.
Many times agencies cannot meet these time limits. The 2007 “Justice Department Guide to the Freedom of Information Act” gets more specific about the realities of the process:
“In ‘unusual circumstances,’ an agency can extend the twenty-day time limit for processing a FOIA request if it tells the requester in writing why it needs the extension and when it will make a determination on the request. The FOIA defines ‘unusual circumstances’ as: (1) the need to search for and collect records from separate offices; (2) the need to examine a voluminous amount of records required by the request; and (3) the need to consult with another agency or agency component. If the required extension exceeds ten days, the agency must allow the requester an opportunity to modify his or her request, or to arrange for an alternative time frame for completion of the agency’s processing.
“Agencies have adopted the court-sanctioned practice of generally handling backlogged FOIA requests on a ‘first-in, first-out’ basis. The Electronic FOIA amendments expressly authorized agencies to promulgate regulations providing for ‘multitrack processing’ of their FOIA requests — which allows agencies to process requests on a first-in, first-out basis within each track, but also permits them to respond to relatively simple requests more quickly than requests involving complex and/or voluminous records.”
The DOJ’s own agency guide to FOIA elaborates on its efforts to meet the deadlines:
“Some components of the Justice Department, such as the FBI and DEA, receive thousands of requests each year. Many of these requests require a line-by-line review of hundreds or even thousands of pages of documents. Although the Justice Department makes every effort to respond to FOIA requests as quickly as possible, in some cases it simply cannot do so within the specified time period. This may be due either to the size of the request or to the fact that the component has a backlog of previously received requests that are awaiting processing.”
Agencies sometimes expedite urgent requests if a “compelling need” is met. There may be a compelling need if failure to obtain the records quickly “could reasonably be expected to pose an imminent threat to the life or physical safety of an individual”; or, if the requester is a “person primarily engaged in disseminating information” and demonstrates an “urgency to inform the public concerning actual or alleged Federal Government activity.” At its discretion, an agency may grant expedited treatment under additional circumstances as well. Contact the agency’s FOIA officer to inquire about the qualifications for expedited treatment.
(See “FOIA report card — annual agency FOIA reports” below for information on actual median response times by agency.)
Common pitfalls & how to avoid them
Each federal agency compiles an annual report detailing its compliance with FOIA. The report lists the basis for each request denied during the year. (The DOJ keeps all departments’ and agencies’ annual reports on its Web site.)
Most requests either fully or partially denied fall under one of the nine exemptions in the act. (See “Information that can, can’t be obtained through FOIA,” above.) However, there are other reasons for nondisclosure that have to do with the request process itself.
The annual reports include these categories of reasons for nondisclosure (in addition to the exemptions):
FOIA specifies that requests must be for existing records. Agencies are not required to collect new information, create new records, do new research or analyze information. Therefore, it’s helpful to know what form the agency keeps its records in. Agencies are supposed to provide information about their record-keeping systems on their FOIA Web sites.
The Justice Department, for example, in a guide called “Descriptions of Major Information Systems,” describes in detail how it organizes the information it gathers by component (e.g., Drug Enforcement Administration) and explains access restraints on each type of information.
While it increases your chances of getting information, you don’t always have to know the exact form of the records you seek. The agency may be able to help you determine that. However you save both yourself and the agency time and expense by being specific in your request.
“… assume that a requester wants to obtain a list of toxic waste sites near his home. A request to the Environmental Protection Agency (EPA) for all records on toxic waste would cover many more records than are needed. The fees for such a request might be very high, and it is possible that the request might be rejected as too vague. A request for all toxic waste sites within 3 miles of a particular address is very specific. However, it is unlikely that the EPA would have an existing record containing data organized in that fashion. As a result, the request might be denied because there is no existing record containing the information. The requester might do better to ask for a list of toxic waste sites in his city, county, or State. It is more likely that existing records might contain this information.”
“When a Justice Department component receives your FOIA request, it ordinarily will send you a letter acknowledging the request and assigning it an initial request number. If you do not provide the necessary information, the component will advise you of what additional information is required before further processing your request.
“Once the component has processed your request and any fee issues have been resolved, the component will send you a written initial determination. In the vast majority of cases, Department of Justice components will include any documents that can be disclosed along with the determination letter, though in some cases the documents themselves may be sent within a reasonable time afterward. The determination letter will advise you of whether any information is being withheld pursuant to one or more of the exemptions. When a page of a record is being withheld in its entirety, the component usually either will specify the number of pages being withheld or will make a reasonable effort to estimate the volume of the withheld information.
“You may file an administrative appeal if you are not satisfied with a Department of Justice component’s initial response. You might disagree with the component’s withholding of information or you might believe that there are additional records responsive to your request that the component failed to locate. You also may file an administrative appeal if you have requested expedited processing or a fee waiver and the component has not granted that request. You also may appeal a determination that a record does not exist, that a record is not readily reproducible in the form requested, that the requested information is not a record subject to the FOIA, or any disputed fee matter. You should be advised of your right to file an appeal in the initial determination letter sent by the component or in the letter denying your request for expedited processing or a fee waiver.
“The appeal should be sent to the head of the agency within 30 to 60 days after the request is denied. Both the front of the envelope and the appeal letter should contain the notation ‘Freedom of Information Act Appeal.’”
If matters have gone this far in the FOIA process, most people will require the assistance of an attorney. The good news is that the burden is on the government to justify the withholding of information. The bad news is that historically most court decisions have been in favor of the government agency.
“Am. Civil Liberties Union v. United States Dep’t of Justice, 265 F. Supp. 2d 20 (D.D.C. 2003) — E.O. 12,958, § 1.5(c) (pre-2003 amendment); disclosure of aggregate, statistical information on number of times that Justice Department has used surveillance and investigatory tools authorized by USA PATRIOT Act would reveal intelligence activities, sources, or methods and could be expected to damage national security.”
“Ctr. for Nat’l Sec. Studies v. United States Dep’t of Justice, 331 F.3d 918 (D.C. Cir. 2003), petition for cert. filed, 72 U.S.L.W. 3248 (U.S. Sept. 29, 2003) (No. 03-472) — 2-1 decision upholding nondisclosure of the identities and other information pertaining to all immigration detainees taken into custody in the government’s post-9/11 terrorist investigation, including the identities of their attorneys; extending the courts’ ‘long-recognized deference to the executive on national security issues’ to Exemption 7(A) ‘in appropriate cases, such as this one’; concluding that disclosure ‘would give terrorist organizations a composite picture of the government investigation’ and thus enable them to impede it through witness intimidation, evidence tampering, evasion, and the formulation of ‘counter-efforts.’ “
“Tripp v. DOD, 193 F. Supp. 2d 229 (D.D.C. 2002) — expedited processing denied because requester is not ‘primarily engaged in the activity of disseminating information,’ even though ‘she has been the object of media attention, and has at times provided information to the media’; requester’s ‘job application to the Marshall Center and the resulting alleged Privacy Act violations by DOD are not the subject of any breaking news story.’ “
FOIA report cards
Various measures can be made of how well the government lives up to the promise of FOIA.
Annual agency FOIA reports
Each department and agency of the federal government must file an annual FOIA report, in effect grading itself on its compliance with FOIA and on providing information to the public. The Department of Justice keeps all departments’ and agencies’ annual reports.
An agency’s annual FOIA report has these standard components:
The classification of government documents directly affects an individual’s ability to obtain information under FOIA. Exemption 1 allows agencies to withhold all documents properly classified as secret in the interest of national defense or foreign policy.
The Information Security Oversight Office, a component of the National Archives, was created to oversee the governmentwide security classification system. By keeping track of classification and declassification, its reports provide an important measure of government secrecy.
Each year ISOO prepares a summary report for the U.S. president of classification activity in all departments and agencies.
ISOO says in its 2003 annual report that it strives to “provide for an informed American public by ensuring that the minimum information necessary to the interest of national security is classified and that information is declassified as soon as it no longer requires protection.”
The agency notes, “Many senior officials will candidly acknowledge that the government classifies too much information, although oftentimes the observation is made with respect to the activities of agencies other than their own. The potential issue of excessive classification is supported, in part, by agency input indicating that overall classification activity is up over the past several years. Yet, some individual agencies are not certain. They have no real idea how much of the information they generate is classified; whether the overall quantity is increasing or decreasing; what the explanations are for such changes; which elements within their organizations are most responsible for the changes; and, most important, whether the changes are appropriate, i.e., whether too much or too little information is being classified and whether it is for too long or too short a period of time. The absence of such rudimentary baseline information makes it difficult for agencies to ascertain the effectiveness of their classification efforts.”
The 2003 report also mentions Executive Order 12958, which states that “information shall be declassified as soon as it no longer meets the standards for classification” (Section 3.1).” The order also “specifically prohibits the use of classification ‘to prevent or delay the release of information that does not require protection in the interest of the national security’ ” (Section 1.7 (a) (4)).
“Nonetheless,” the ISOO report says, “declassification activity has been down for the past several years.”
Executive Order 12958 includes a “mandatory review process” that lets individuals or organizations “require an agency to review specified national security information for purposes of seeking its declassification. Requests must be in writing and must describe the information with sufficient detail to permit the agency to retrieve it with a reasonable amount of effort.”
ISOO contends that mandatory review “remains popular with some researchers as a less contentious alternative to Freedom of Information Act (FOIA) requests. It is also used to seek the declassification of presidential papers or records, which are not subject to the FOIA.”
In an effort to put the ISOO classification report in context, a nongovernment, nonprofit coalition called OpenTheGovernment.org released an independent study on government classification and secrecy in 2008.
OpenTheGovernment.org has also compiled a report on the most-wanted documents.
Other nongovernment classification resources
How to request records from state governments
Each state has its own freedom-of-information laws, modeled to various degrees after the federal FOIA. Many cities also have their own FOI laws.
Significant FOIA victories
There has been unprecedented access to government information in the nearly four-decade lifespan of the Freedom of Information Act. A more open government has meant greater public knowledge about all aspects of life. In many cases it has meant secrets uncovered and wrongs righted. The following is just a sampling of the thousands of issues made public over the years through FOIA.
Updated June 2009