Open records & meetings (FOIA)

Are you having trouble getting access to information from federal, state or local governments? Do you need to follow the latest on how privacy and national security issues are affecting access?

Reporters gain useful insights into government operations at the local, state and federal level by examining government records or attending government meetings. Whether it involves probing police misconduct, scrutinizing how local governments spend taxpayer money, or gathering information on school bus drivers’ traffic records, open records and meetings laws are a powerful oversight tool for journalists and citizens.

All states, the District of Columbia and the federal government have enacted open records or “freedom of information” laws that guarantee access to government documents. The laws are amended regularly and, in recent years, there has been an effort to address access to electronic records in many jurisdictions.

The 2007 amendments to the federal Freedom of Information Act established the Office of Government Information Services to help resolve FOIA disputes between requesters and agencies.

Open records and meetings laws vary from jurisdiction to jurisdiction. Records laws often contain exemptions for personal privacy, law enforcement and investigative files, commercially valuable information, pre-decisional documents, national security interests, and attorney-client communications and attorney work product.

Open meetings or “sunshine” statutes give the public the right to attend the meetings of commissions, councils, boards and other government bodies. Some states permit electronic meetings so long as public access to the meetings is assured. Most states include exemptions for personnel matters, collective bargaining sessions, discussions with agency attorneys, and discussion of the acquisition or sale of public property.

Common questions

Just ask.  A relatively simple letter will usually do the trick.  Many states allow the public to also make oral records requests in-person or by telephone but some records custodians will require a requester to put their request in writing.  While oral requests can be a quick way to obtain records easily retrievable by custodians, it is often better practice to put a request in writing, addressed to the specific governmental body that has custody of the records.  Most federal agencies will require a formal, written request. 

At the federal level, executive branch “agencies” are subject to the federal Freedom of Information Act.  “Agencies” are defined to include executive branch departments, military departments, government-controlled corporations, the Executive Office of the President (though not the President himself nor his immediate advisors) and independent regulatory bodies such as the EPA and the FCC. 

All FOI laws contain a variety of exemptions that allow the government to withhold certain kinds of records.  The federal Freedom of Information Act contains nine exemptions ranging from exemptions covering national security and law enforcement records exclusions to those protecting personal privacy and confidential business information

Under the federal Freedom of Information Act, fees are assessed based on the particular fee category a requester falls within.  Different fee categories apply to, for example, commercial requesters and non-commercial requesters such as the media or scientific researchers.  Commercial users can be charged search, review and duplication fees while media requesters are normally only charged duplication fees with the first 100 pages of records provided at no cost.

Generally no.  The government cannot base its decision to restrict access to a record based on a requester’s intent when seeking the record.  The general rule is that if it’s public for one, it’s public for all.  This is certainly true for records that are unquestionably open to public review.  Whether you seek government information for commercial gain, to inform the public about local government activity or simply because you are curious, your personal motivations generally have no bearing on whether you have a right to access a record. 

Most jurisdictions these days will provide records in the format you request if they are kept in that format and are readily retrievable in the requested format.  The federal Freedom of Information Act states that “an agency shall provide the record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format.”  Further, under federal FOIA an agency is required to “make reasonable efforts to search for the records in electronic form or format, except when such efforts would significantly interfere with t

Under the federal Freedom of information Act, the guiding principle is one of “reasonableness.”  The federal FOIA requires that a request “reasonably describes” the records sought.  Therefore, it is important to be clear about what records you are seeking and not treat FOIA as a fishing expedition that will require agency personnel to expend an unreasonable amount of time complying with the request. 

You have the right to appeal a public records request denial but exactly how you do that varies by jurisdiction. 

Under the federal Government in the Sunshine Act, all agencies subject to the federal Freedom of Information Act that are headed by a “collegial body” of two or more members, a majority of whom are appointed by the President and confirmed by the Senate, are required to hold their meetings in public.  Meetings of sub-divisions of such agencies are also subject to the open meetings requirements.   

Under the federal Government in the Sunshine Act, federal agencies can close portions of meetings to the public when discussions are likely to disclose matters related to, for example, classified information, law enforcement records or personal privacy.  These exceptions generally follow similar exceptions found in the federal Freedom of Information Act.

For answers to more frequently asked questions, check out our Federal Open Government Guide

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The federal Freedom of Information Act requires that agencies make available "to any person" certain records, subject to some exemptions, for inspection and copying.  Agency, as defined by FOIA, includes “each authority of the Government of the United States, whether or not it is within or subject to review by another agency.”   However, the definition excludes major governmental bodies that are, therefore, not subject to FOIA, including Congress and federal courts.  Similarly, state-level public records laws delineate which offices’ records a

The right to inspect and copy government records does not mean the government must provide free access.  Under various state open records acts and the federal Freedom of Information Act, governmental bodies often have the ability to charge requesters fees for the time spent searching for a record, reviewing the record, and for producing a copy of the record.  Under the federal FOIA, fees must be “reasonable” and related to the “direct” costs incurred for the search and copy of the records.  Check

The federal Freedom of Information Act and every state open records law generally say that agency records are open for inspection and copying by the public.  However, these rights are limited by several exemptions. At the federal level, there are nine exemptions to FOIA.  The states have varying numbers of exemptions that tend to be relatively similar to the federal exemptions.

In 1996, the federal Freedom of Information Act was amended to specifically include electronic formats in its definition of a record.  Known as “EFOIA,” the amendment required that records be provided in their electronic form if that format is "readily reproducible" as long as production would not "significantly interfere with the operation of the agency's automated information system."

There are several types of records request denials.  First, there is a substantive denial, where you are denied access to the actual records, generally because the government has determined an exemption to mandatory disclosure applies to some or all of the materials requested. 

Another kind of denial is when the government responds to the request by saying it has no records that are responsive to the request.  The appeal under these circumstances would be based on the contention that the agency failed to conduct an adequate search for the records. 

In addition to open records acts, the federal government and each state also have open meetings laws.  An open meeting law, on any level, generally requires that the government hold meetings, deliberate, and make decisions in the open.  The laws also generally require that the public is given advanced notice of upcoming meetings as well as the subject matter of the meeting.

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