The Freedom of Information Act: A Practical User's Guide
I. What is the Freedom of Information Act (FOIA)?
II. Who is subject to the FOIA and what type of information can be requested?
III. Can agency records be obtained without filing a FOIA?
IV. How do I file a FOIA request?
V. Am I entitled to a fee waiver? How do I request one?
VI. What response to my request can I expect? What should I do next?
VII. How do I appeal the agency's action on my request?
VIII. Anything else I should know about FOIA requests?
What is the Freedom of Information Act (FOIA)?The FOIA, codified at 5 U.S.C. section 552, is a federal law that establishes the public's right to obtain information from federal government agencies. "Any person" can file a FOIA request, including U.S. citizens, foreign nationals, organizations, associations, and universities.
Who is subject to the FOIA and what type of information can be requested?The FOIA's scope includes 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 that function solely to advise and assist the President are not subject to the FOIA. "Agency records" obtainable under the FOIA include a wide range of documents or other materials (including print, photographic, and electronic formats) that were created or obtained by a Federal agency and are, at the time the request is filed, in that agency's possession and control.
Can agency records be obtained without filing a FOIA?Yes. Older, material, especially pre-1960s records, may be available at the National Archives in Washington, DC or at one of the Presidential libraries. Call the National Archives reference branch (202-523-3220) for more information.
How do I file a FOIA request?Write a letter to the FOIA office of the agencies that are likely to have the information you seek and, if possible, address it to the agency component that has the relevant records (e.g., to the Military Airlift Command at Scott Air Force Base instead of the Department of Defense). For the address, call the agency or ask a reference librarian at a law, research, or public library. The letter should be on the letterhead of the educational or news media organization with which you are affiliated, if applicable, and should include:
a statement that the letter is a request under the Freedom of Information Act, 5 U.S.C. section 552; a clear and specific description of the information you want. If possible, cite dates, authors, addressees, subjects, or titles of documents sought, and refer to or enclose copies of any published accounts related to the requested material (e.g., newspaper or journal articles or government reports); a request for a waiver of fees [see Part V.]; and a statement that you expect a response from the agency within the 10-day statutory time period, that you want a detailed explanation of the exemptions invoked to withhold any information from release [see Part VI.], that if material is withheld, you are entitled under the law to be given any remaining "reasonably segregable portions" of these documents, and that you will file an administrative appeal if the agency's response is not satisfactory [See Part VII.]
Am I entitled to a fee waiver? How do I request one?The FOIA provides to all non-commercial requesters the first two hours of search time and 100 pages of copying free of charge. If your request arises from your affiliation with an educational or noncommercial scientific institution whose purpose is scholarly or scientific research or you are a representative of the news media, you are entitled to waiver of all search and review fees. In addition, all fees, including copying, must be waived by the agency 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." If your request fits into this statutory criteria, you should make your case for a fee waiver in your request letter as strongly as possible. Describe the scholarly, historical, or current public interest in the material requested. Provide information about your intended professional scholarly or journalistic uses of the information you receive. List any relevant previous or pending publications, including books, articles, dissertations, publication contracts or letters of intent or interest, or similar information that shows your ability to disseminate the information you receive from the agency. State that the materials are not requested solely for a private, profit-making commercial purpose You may also wish to request that to the extent any fees are assessable, the agency notify you if those fees will exceed an amount you specify. For a court decision interpreting the fee provisions of the FOIA, see National Security Archive v. Department of Defense, 880 F.2d 1381 (D.C. Cir. 1989).
What response to my request can I expect? What should I do next?Ideally, the agency will promptly release everything you requested with a full waiver of fees. More common agency responses (and suggested actions you can take) include the following:
You receive an acknowledgment of your request and a statement that the request has been placed in the queue and will be Processed in its turn.Agencies are allowed to process requests on a first-come, first-served basis. If the agency has a backlog of requests (and most do), you may have to wait some time before you receive the materials you seek. Call or write the FOIA office to follow up on requests that have been pending for an unreasonable period of time. Get the names of specific FOIA personnel you can contact about your request. Excessive processing delays may require an administrative appeal letter. [See Part VII.] Your request for a fee waiver is acknowledged but more information is sought before the agency will begin processing the request. Sometimes the agency asks a series of questions, sometimes a multi-page questionnaire may be enclosed for you to fill out and return.The best way to avoid this response is to provide as much information as possible in your initial letter to support your request for a fee waiver. [See Part V.3 If you fit the FOIA's criteria for a fee waiver but the agency continues to resist granting you one, it may be necessary to write a strong letter reminding the agency of Congress's intent that fee waivers be granted to all requesters who meet the statutory conditions. The agency says that no records were found in response to your request or claims that your request is too broad.Call or write the FOIA office and ask if additional information is needed from you to make your request more specific. Explain why you believe the agency has material responsive to your request and inquire about other places in the agency's files where relevant records might be found. Information relevant to your request is found, but the agency withholds all or part of it.The FOIA allows an agency only nine exemptions from its obligation to provide information in response to a request. These exemptions, found at 5 U.S.C. section 552(b), include material related to national security, internal agency rules, proprietary business information, inter- and intra-agency pre-decisional memoranda, personal privacy, and records related to law enforcement records. Improper agency use of these exemptions to withhold information can be appealed. [See Part VII.]
How do I appeal the agency's action on my request?It is always worthwhile to file an administrative appeal if the agency's response is unsatisfactory. Appeals can be especially effective to successfully challenge excessive processing delays, fee waiver denials, and the improper full or partial withholdings of responsive documents. Agency regulations governing appeals vary; take careful note of the instructions for filing an appeal in the agency's response to ensure that your appeal is timely. An appeal letter should state the grounds for appeal and reasons why the agency's response to the request was improper, request a more precise explanation of the agency's decision (if the reasons for the initial determination were unclear), and say that you expect a final ruling on the appeal within the 20-day statutory time limit.
Anything else I should know about FOIA requests?Don't be discouraged if the agency is less than fully responsive to your request. Contact the agency's FOIA office to check on the status of your request and to see if additional information is needed to expedite processing or to clarify what you want. Keep copies of all your correspondence and notes of all phone calls. Always file an appeal letter if the initial response is inadequate. If the agency fails to respond satisfactorily, you may wish to seek the assistance of a member of Congress to contact the agency on your behalf. If all else fails, you have the right to go to court to force the agency to release the documents. More details on how to file a FOIA request and administrative appeal can be found in an excellent publication: Adler, Using the Freedom of Information Act: A Step by step Guide. This pamphlet is an invaluable resource for FOIA requesters and can be obtained for $3 from the American Civil Liberties Union, 122 Maryland Ave NE, Washington, D C. 20002. A more technical text, Litigation Under the Federal Freedom of Information Act, is also available from the ACLU at the same address.