The Freedom of Information Act: A Practical
User's Guide
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.