Freedom of Information

To meet the test, you must first show that the agency officially acknowledged “the specific information” you seek, rather than “similar information.”⁴⁵

Where “information has been ‘officially acknowledged,’ its disclosure may be compelled even over an agency's otherwise valid exemption claim.”³⁸ To show that the government “officially acknowledged” information — and must therefore release it — you must establish that the information you seek 1) “is as specific as the information previously released,” 2) “match[es] the information previously disclosed,” and (3) “ha[s] already been made public thro

If an agency has previously disclosed information to a member of the public, but is now attempting to withhold it from you, you should argue that its prior disclosure waives the agency’s right to withhold it from another member of the public. As one court held, “FOIA does not permit selective disclosure of information only to certain parties, and [ ] once the information is disclosed to [a requester], it must also be made available to all members of the public who request it.”³⁴

In some contexts, courts have sometimes adjusted or rejected the “public domain” test in determining whether waiver occurred. This generally happens when a court looks to the circumstances of the disclosure, and finds that even though the requester has proven the elements of the “public domain” test, the purpose of the exemption would still be served by allowing the agency to continue to invoke it in that particular circumstance.

Whenever possible, you should provide the agency with a copy of the “permanent public record” — a “hard copy” — of the information as it exists in the public domain.⁹ One court has found that providing newspaper accounts containing quotes from tapes played during trial would constitute a “permanent public record” of those specific portions of the tapes.¹⁰ Another court has explained that a requester could meet this elem

You must generally provide the agency with evidence that the exact information or record it seeks to withhold under a FOIA exemption is already available to the public.

A common test for waiver applied by agencies and courts is the “public domain” standard formulated by the U.S.

On occasion, you may successfully argue that a document must be released despite a potential FOIA exemption because the information is already in the public domain. Under those circumstances, called the “waiver doctrine,” materials “normally immunized from disclosure under FOIA lose their protective cloak once disclosed and preserved in a permanent public record.”¹

Even if you have “identified…with great specificity” the documents you seek, an agency may still deny the request if searching for the documents would be unduly burdensome.¹⁸ If you seek a very large number of documents, the court will examine the “reasonableness” of the search based on the volume of documents that must be searched to identify responsive records.¹⁹

FOIA requires that requested records be “reasonably describe[d].”¹ As one court has said, a request meets this requirement if “the agency is able to determine precisely what records are being requested.”² As another put it, the standard is met when it allows “a professional employee of the agency who [is] familiar with the subject area of the request to locate the record with a reasonable amount of effort.”