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Using the Federal Freedom of Information Act

INTRODUCTION

This research guide discusses how to use the federal Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to obtain records from federal government agencies when those records have not been published in the Federal Register or otherwise distributed by the Goverment Printing Office.   For example, if you are researching the history of a regulation and the public comments associated with that regulation weren't published in the Federal Register, you might be able to find them on the Internet in the agency's Electronic FOIA Reading Room. In the alternative, you might be able to obtain them by requesting them under the Freedom of Information Act.

This guide is intended only as an introduction to the Federal Freedom of Information Act. It provides citations to other guides and handbooks, as well as agency regulations, which may help you in drafting your own FOIA requests. This guide does not discuss state freedom of information laws.

Please note: On December 31, 2007, the Open Government Act of 2007 was signed into law amending sections of the Freedom of Information Act for the first time in over a decade. Senate Report 110-059 discusses the intent of this act. The impact of the new law is the topic of much discussion. It aims to eliminate backlog of FOIA requests by setting time limits for agencies to act on requests. It also establishes an ombudsman within the National Archives and Records Administration to oversee agency policies and procedures, audit agency performance and recommend policy changes. While some of the provisions of the bill were effective immediately, most will apply to government agencies one year after enactment, December 31, 2008. Here are a few sites monitoring the new legislation:

FOIA Facts: The Impact of the OPEN Government Act of 2007
Coalition of Journalists for Open Government
Washington Post
Other Advocacy Organizations

Further Information:

Note that all 50 states and the District of Columbia have their own freedom of information statutes. The text of each of those statutes can be found in the appendices to Justin D. Franklin and Robert E. Bouchard, Guidebook to the Freedom of Information and Privacy Acts (2d ed. 1986-) [KF5753 .B68 1986].

OVERVIEW OF THE FEDERAL FREEDOM OF INFORMATION ACT

1. What Information Is Available Under the Freedom of Information Act?

The federal Freedom of Information Act, 5 U.S.C. § 552, which was originally enacted in 1966, provides for public access to many federal executive branch agency records.  For purposes of the FOIA, the term “agency . . . includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 

5 U.S.C. § 552(f)(1).  FOIA cannot be used to obtain records of Congress or the federal judiciary. It also cannot be used to obtain state records; each state has its own freedom of information statute.

2. Methods of Information Disclosure Under FOIA

There are three major methods of information disclosure under the FOIA, one of them being the formal FOIA equest. All three distribution systems are explained below, since you will not need to make a formal request if the information you need has been made available in another manner.

a. Publication in the Federal Register

FOIA requires that agency regulations and procedural rules be automatically published in the Federal Register. 5 U.S.C. § 552(a)(1). After their initial appearance in the Federal Register, these rules are also published in a subject arrangement called the Code of Federal Regulations. Note that although the Code of Federal Regulations contains only regulations, the Federal Register includes many other types of agency information, including information not statutorily required to be published there.

You do not need to file a FOIA request to obtain information published in the Federal Register or Code of Federal Regulations, because you can search them yourself. It is therefore a good idea to search the Federal Register and/or the Code of Federal Regulations for agency information before you go to the trouble of making a FOIA request. For advice on searching the Federal Register and Code of Federal Regulations, see the Library’s Administrative Law Research Guide [http://www.ll.georgetown.edu/guides/admin.cfm].

b. Agency Reading Rooms

FOIA requires that certain other documents be made available for public inspection and copying in agency reading rooms unless they are promptly published and offered for sale. These documents include (1) opinions and orders in agency adjudications, (2) policy statements and interpretations that do not rise to the level of regulations or procedural rules, (3) administrative staff manuals and instructions to staff that affect members of the public, and (4) copies of records that have previously been furnished in response to a FOIA request and which the agency has reason to believe are likely to be requested again in the future. 5 U.S.C. § 552(a)(2).

Before you go to the trouble of making a FOIA request for agency information, it is a good idea to check the agency’s reading room to see if the information is available without a request. Most federal agencies now make their reading room materials available electronically on their web sites. Addresses for agencies’ conventional reading rooms and links to their electronic reading rooms can be found on the Department of Justice web site:

If you think that legally required materials are missing from an agency’s electronic reading room, you should contact the agency’s FOIA officer for assistance:

  • List of Principal FOIA Contacts at Federal Agencies [http://www.usdoj.gov/04foia/foiacontacts.htm]. Includes links to agencies FOIA home pages (not necessarily the same as the Electronic Reading Rooms accessible from the link above).
c. FOIA Requests

In the case of information not made available under the two provisions above, “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3). You will have to make a written request for this information, a process which is described below. Before you do, however, you should consider whether the information you are seeking is exempt from disclosure.

3. FOIA Exemptions

There are nine categories of documents that are exempt from disclosure under FOIA (5 U.S.C. § 552(b)). Briefly, these nine categories are:

  1. classified documents;
  2. documents related solely to the internal personnel rules and practices of an agency;
  3. documents specifically exempted from disclosure by another statute;
  4. trade secrets and privileged commercial or financial information;
  5. inter-agency or intra-agency memos or letters that would be considered "privileged" for litigation purposes;
  6. personnel and medical files (the "personal privacy" exemption);
  7. records compiled for law enforcement purposes (but these are only exempt where they could reasonably be expected to interfere with enforcement proceedings, or would deprive a person of the right to a fair trial, or could reasonably be expected to endanger someone's life or physical safety, etc.);
  8. reports made for regulatory purposes by financial institutions to the government; and
  9. geological and geophysical information (including maps) related to oil and gas wells.

For more detailed explanations of these exemptions, see one of the handbooks or treatises listed below.

MAKING A FOIA REQUEST

1. Verify that the Records in Question Cannot Be Obtained by Another Method.

FOIA requests take considerable time to process and can be expensive, since the requester must usually pay the costs of the document search and copying. Many agency documents have already been offered for sale as government documents, published in the Federal Register, posted on agency web sites, or included in commercial publications or database services. Therefore, before you make a FOIA request you should exhaust more traditional research methods. An excellent place to start is with the agency's Electronic FOIA Reading Room; a list of those reading rooms, with links, is available at http://www.usdoj.gov/04foia/04_2.html. You might also want to ask a reference librarian for help identifying commercial sources of records.

2. Identify the Appropriate Agency FOIA Contact(s).

Each federal agency subject to FOIA has an officer responsible for handling FOIA requests. Cabinet level departments such as Defense and Treasury, have separate FOIA officers for their various subdivisions and regional offices. For example, the IRS is an agency within the Department of the Treasury, and the IRS and Department of Treasury each have their own FOIA officer. If you know for certain which subdivision or agency within a department has the records you want, send your request letter directly to that agency's FOIA officer. If you're not sure, it may be a good idea to send your request to both FOIA officers. Rebecca Daugherty, ed., How to Use the Federal FOI Act 5 (9th ed. 2004). The Department of Justice maintains a list of agencies with contact information for their FOIA officers (including mailing addresses) at http://www.usdoj.gov/04foia/foiacontacts.htm.

3. Research the Agency's FOIA Regulations and Fees.

Every federal agency makes its own FOIA regulations. Before you write your FOIA request, take a little time to familiarize yourself with the regulations of the agency from whom you will be requesting records, especially their fee schedule and procedures for granting expedited review of qualifying requests. For help finding agency-specific FOIA regulations, see the "Administrative Materials & Regulations" section of this guide. Many agencies also post their fee schedules in their electronic FOIA reading rooms.

4. Write the Request Letter.

The letter does not have to be complicated, and each of the handbooks and treatises listed below includes sample request letters. Many agencies also include form request letters on their main FOIA home pages (see the DOJ list of FOIA contacts at http://www.usdoj.gov/04foia/foiacontacts.htm for links to agency FOIA home pages).

The request should be made in hard copy (not by email or telephone) and clearly labeled as a Freedom of Information Act request. At a minimum, the request should include

  • your contact information
  • a description of the records requested (including subject matter)
  • an offer to pay reasonable charges for actual search time and for photocopies
  • a statement setting an upper limit on the amount of money you are willing to pay for the agency's response, and
  • a request for response within 20 working days (the statutory deadline absent "unusual circumstances").

Keep in mind that the more specific your description of the records you seek, the more likely you are to get what you want. In addition to the minimum contents already suggested, your request could include a request that the agency contact you to verify your willingness to pay fees above the upper fee limit you set, a request for a fee waiver, and/or a request for expedited review.

If you decide to request a fee waiver, be aware that individual agencies promulgate their own regulations for determining when such waivers are appropriate. For help finding these regulations, see the "Administrative Materials & Regulations" section of this guide.

Statutory grounds for expedited review are (1) imminent threat to the life or safety of an individual and (2), when the requester is a reporter, an urgent need to inform the public about actual or alleged federal government activity. To support a request for expedited review, you should include a description of the circumstances that you feel entitle you to such a review, and certify that your reasons for requesting such a review are true and correct to the best of your knowledge and belief. Rebecca Daugherty, ed., How to Use the Federal FOI Act 7 (9th ed. 2004).

5. The Agency's Response.

By statute, the agency is required to grant or deny FOIA requests within 20 working days, except "in unusual circumstances." In the event of "unusual circumstances" (which almost always exist!), an agency may extend the deadline for a decision by sending written notice to the requester that includes the new deadline and a statement of the circumstances that make the extension appropriate. 5 U.S.C. § 552(a)(6)(B). "Unusual circumstances" means (1) the need to search and collect documents from offices separate from the office processing the request; (2) the need to search and collect a large volume of records; or (3) the need to consult with another agency (or a separate subdvision of the same agency) having a substantial subject-matter interest in the request.

If you requested expedited review, the agency must grant or deny you faster processing within 10 days of the date of the request. 5 U.S.C. § 552(a)(6)(E)(ii).

If the agency denies your request, it must tell you the reasons for the denial and notify you of your right to make an appeal. 5 U.S.C. § 552(a)(6)(A)(i). The agency must also make a reasonable effort to estimate the volume of any requested materials which it has declined to provide, unless providing such an estimate would harm an interest protected by an exemption under which the denial is made. 5 U.S.C. § 552(a)(6)(F).

6. Appeals.

Administrative appeals are typically made to the head of the agency involved within 30 days of a request's denial. However, each agency promulgates its own regulations related to appeal procedures. For help finding these regulations, see the "Administrative Materials & Regulations" section of this guide. Sample appeal letters can be found in each of the handbooks and treatises discussed below.

If your administrative appeal is denied, or if the agency doesn't respond to your appeal within 20 days, you may file a FOIA lawsuit in the federal district court "in the district in which the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia...." 5 U.S.C. § 552(a)(4)(B). The court will review the agency's decision de novo. Id. For more information on FOIA lawsuits, including sample complaints, see items 2 through 4 under the Handbooks and Treatises section of this guide.

HANDBOOKS AND TREATISES

The books below provide additional advice on interpreting the federal Freedom of Information Act and/or drafting FOIA requests.

1. U.S. House of Representatives Committee on Government Reform, A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records (2005)

This House Report (H. Rep. 109-226) explains the process of making a FOIA request, how agencies must respond, and how to file administrative and judicial FOIA appeals if your request is not filled. Includes sample request and appeal letters.

2. How to Use the Federal FOI Act (9th ed. 2004), Rebecca Daugherty [KF5753 .H69 2004]; also available online at http://www.rcfp.org/foiact/index.html.

This brief pamphlet is published by the Reporters Committee for Freedom of the Press [http://www.rcfp.org/]. It explains what materials are and are not available under FOIA, how to make a FOIA request, and how to appeal its denial. Appendices include a sample FOIA request letter, sample FOIA appeal letter, and sample FOIA complaint.

3. Federal Information Disclosure (3d ed. 2000-) James T. O'Reilly

[ KF5753 .O74 2000]; also available as Westlaw's FEDINFO database. Kept up to date with pocket parts. Covers not only the Freedom of Information Act, but also the Privacy Act and the Government in the Sunshine Act. Provides in-depth explanations of these acts with extensive citations to primary sources, including analysis of the legislative history of FOIA (chapters 2 and 3). An appendix includes the following forms, among others: simple disclosure request, request for disclosure in controversial cases, model appeal letter, sample FOIA complaint.

4. Guidebook to the Freedom of Information and Privacy Acts (2d ed. 1986-), compiled and edited by Justin D. Franklin and Robert F. Bouchard [KF5753 .B68 1986].

Looseleaf for updating. Provides detailed analysis of the federal Freedom of Information Act, with extensive citations to case law. Also provides appendices reprinting state freedom of information statutes from all 50 states and the District of Columbia.

5. Freedom of Information and the Right to Know: The Origins of Applications of the FOIA. [KF5753 .F64 1999].

This examination of the Freedom of Information Act (FOIA) traces the American origins of the belief that citizens of a democracy have a natural right to know about the workings of their government. The issue began in the colonies and came to a head in the 1950s when escalating government secrecy led the press to demand "open government." declaring that "the public business is the public's business," a series of crusading newspaper editors aroused public support for the Freedom of Information Act which was passed in 1966.

6. Federal Information Disclosure [KF5753 .O74 2000].

Provides comprehensive coverage of the Freedom of Information Act and its amendments. Encompasses political aspects of advocacy; affirmation publication and dissemination; access to electronic records; winning requests at agency level; litigation; conditions and limitations of and sources on access; rights of the private submitter of information; exemptions; confidential business information; the Privacy Act; Government in the Sunshine Act; Federal Advisory Committee Act; publicity and the agencies; other federal mandates for public disclosure; and state information and access laws. Includes appendixes, model forms, and cases.

7. Freedom of Information Act Guide (FOIA-GUIDE), (Department of Justice)

The Justice Department Guide to the Freedom of Information Act (FOIA) is an overview discussion of the FOIA's exemptions, its law enforcement record exclusions, and its most important procedural aspects. Prepared by the attorney and law clerk staff of the Office of Information and Privacy, it is updated and revised biennially (every two years).

On Westlaw, the FOIA-GUIDE database contains the Justice Department's Freedom of Information Act Guide which addresses the Freedom of Information Act (FOIA), 5 U.S.C.A. s 552 (1988). An overview prepared by the Office of Information and Privacy and the Office of Management and Budget of the provisions of the Privacy Act of 1974, 5 U.S.C.A. s 552a (1988 & 1990), is included. A Citizen's Guide to the Freedom of Information Act and the Privacy Act of 1974 by the House Committee on Government Operations is also included. User I.D. and password required for log-in to Westlaw .

ADMINISTRATIVE MATERIALS & REGULATIONS

In drafting FOIA requests, it is advisable to consider the regulations of the specific agency from which you are requesting information. Agency-specific regulations typically include a list of the fees an agency charges to process FOIA requests and a description of the required request format. In addition to reviewing the specific agency's regulations, you may want to consult guidance materials issued by the Department of Justice's Office of Information and Privacy, which advises other agencies on FOIA issues.

1. Department of Justice

According to its own web site, the “Department of Justice's (DOJ) Office of Information and Privacy (OIP) is the principal contact point within the executive branch for advice and policy guidance on matters pertaining to the administration of the Freedom of Information Act.” For this reason, the DOJ publishes extensive FOIA guidance materials on its web site that are applicable to all federal agencies. These materials include:

  • Freedom of Information Case List (DOJ) [KF5753.A58 D46] a compilation of judicial decisions, both published and unpublished, under the Freedom of Information Act, the Privacy Act of 1974, the Government in the Sunshine Act, and the Federal Advisory Committee Act."
    "Questions and answers on the Freedom of Information Act (FOIA) and Privacy Act as of September, 2004" can also be found on this very informative website which offers an official publication from the U.S. General Services Administration (GSA).

  • DOJ’s Basic FOIA Training Manual [http://www.usdoj.gov/oip/trainingmaterials.htm]. Used in Office of Information and Privacy training program, "The Freedom of Information Act and Privacy Act for Attorneys and Access Professionals." Compilation of policy guidance issued through FOIA Update and FOIA Post, as well as additional reference items.

  • FOIA Post [http://www.usdoj.gov/oip/foiapost/mainpage.htm]. 2001-. FOIA Post is a newsletter that keeps federal agency employees informed about developments in FOIA law and at the DOJ’s Office of Information and Policy.

  • FOIA Update [http://www.usdoj.gov/oip/foi-upd.htm]. 1979-2000. Prior incarnation of FOIA Post.

Procedures for obtaining records from the Department of Justice itself can be found in 28 C.F.R. Part 16.

2. Other Agencies

Each federal agency makes its own procedural regulations for handling FOIA requests and FOIA reading room documents. These regulations can be found in the Code of Federal Regulations. Links to FOIA regulations from selected agencies are provided below.

Further Information:

Other agencies' FOIA regulations can also be found in the Code of Federal Regulations; for information on searching the Code of Federal Regulations, see the Library’s Administrative Law Research Guide [http://www.ll.georgetown.edu/guides/admin.cfm].

CASE LAW

If you need help interpreting any portion of the FOIA or regulations made under it, case law may be useful. Researching case law will be essential if your FOIA request is denied and you decide to appeal the denial.

1. Annotated Codes

One way to look for case law interpreting the FOIA is to review the annotations following 5 U.S.C. § 552 in an annotated version of the United States Code:

2. West's Federal Practice Digest Topic and Key Numbers

Another way to search for cases is to look in West's Federal Practice Digest [ KF127 .F31 1989]. Most FOIA cases are summarized under the topic Records (326), key numbers 30-68 (public access). Below are key numbers for some major issues:

  • k33: Persons entitled to disclosure; interest or purpose
  • k34: Proceedings for access
  • k35: Proceedings to prevent disclosure
  • k50: In general; freedom of information laws in general
  • k51: Agencies or custodians affected
  • k52: Persons entitled to disclosure; interest or purpose
  • k53 – k60: Matters subject to disclosure; exemptions
  • k61 – k68: Proceedings for disclosure

To search for any of these key numbers in a case law database on Westlaw, use the terms & connectors search TO(326k??), where the TO() limits your search to Westlaw's "Topic" field and the ?? represents the key number.

ADVOCACY ORGANIZATIONS

The organizations listed below monitor agency compliance with FOIA and developments in FOIA law; they also advocate for improved agency compliance.

6/06 (SK)
Updated 02/08 (MK)

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