Federal Open Government Guide

A New Orleans resident walks through the floodwaters left by Hurricane Katrina on Sept. 4, 2005. Days later, Times-Picayune reporter Mark Schleifstein filed a FOIA request with the EPA to learn whether any toxins or chemicals were found in its tests of the sometimes waist-high water that victims, rescue workers and journalists waded through. Although he was granted expedited processing, Schleifstein’s request still had not been filled as of early 2009.

AP Photo by Rick Bowner

The Federal Freedom of Information Act

How FOIA works

The federal FOIA¹ provides access to all records of all federal agencies in the executive branch, unless those records fall within one of nine categories of exempt information that agencies are permitted (but generally not required) to withhold.

On President Barack Obama’s first full day in office — Jan. 21, 2009 — he issued two memos addressing government transparency and FOIA. Announcing that his administration is “committed to creating an unprecedented level of openness in Government,” Obama’s Memorandum on Transparency and Open Government pledged that the White House would work with the public “to ensure the public trust and establish a system of transparency, public participation, and collaboration.”

With regard to FOIA, the Memorandum on the Freedom of Information Act directed his incoming attorney general to reestablish the presumption of disclosure for government records. This memo was almost certainly meant to address the previous standard established in 2001 by former U.S. Attorney General John Ashcroft. The Ashcroft standard encouraged federal agencies to thoroughly consider reasons for invoking exemptions to FOIA, and assured agency personnel that the Justice Department would fully support denials of exempt material so long as they were legally defensible and would not jeopardize the government’s ability to continue to withhold other information.²

Obama’s Day One memorandum brought the administration’s interpretation of FOIA back in step with the 1993 memorandum issued by then-Attorney General Janet Reno. She had instructed agencies to use their discretion to release documents. Even if requested information arguably or technically fell within an exemption, agencies were not to invoke that exemption unless they could point to a “foreseeable harm” that would come from disclosure.³

The January 2009 Obama directive is even more proactive, ordering agencies to take “affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government.” Finally, it urges timely disclosure — a long-standing barrier to filling requests.

The new attorney general is expected to further formalize the administration’s approach to interpreting FOIA through his or her own memorandum, presumably in the first 120 days in office.

Filing a request

You may try to make an informal telephone request to an agency to obtain documents. However, agencies frequently require that requests be made in writing. In fact, you establish your legal rights under FOIA only by filing a written request. (See the online FOIA Request Letter.) Once you have filed a FOIA request, the burden is on the government to release the documents promptly or to show that they are covered by one of the FOIA exemptions.

At all agencies, the request is received by the office designated to receive FOIA requests, and then processed in a FOIA Service Center overseen by a Chief FOIA Officer and FOIA Public Liaison. Under amendments to the law in 2007, the request is to be assigned a tracking number, which allows requesters to later check the status of their requests online or over the phone and provides them with an estimated date by which action on the request will be completed.

The agency must respond to your written FOIA request within 20 working days; however, as a practical matter, agencies frequently disregard that deadline without penalty.

The amendments offer the agencies a potential “out” in meeting that deadline by allowing them one clarification request that stops the clock, either for fee assessment purposes or for additional information about the request.

A “response” to a request is a grant or denial of the records sought. A simple acknowledgment by an agency that it has received your request does not count as the response to which you are entitled under FOIA.

Should an agency fail to issue a response within the statutory 20-day deadline, it may also be allowed additional time without violating the law if there are “unusual or exceptional circumstances” associated with the request. A routine backlog of requests at the agency would not qualify as an unusual or exceptional circumstance. Despite this requirement, few FOIA requests are fulfilled in 20 days.

If you have an urgent need for the information, you should ask for “expedited processing.” You are entitled to expedited processing if you can show “compelling need” to the agency. This is most often granted if health and safety are at issue or if you are a person primarily engaged in disseminating information and there is an urgency to inform the public about an actual or alleged governmental activity. Agencies may also decide that they will grant expedited processing for other categories of records. For instance, the Justice Department grants expedited processing for requests concerning issues of government integrity that have already become the subject of widespread national media interest. That agency also grants expedited processing if delay might cause the loss of substantial due process rights.

An agency may charge you the reasonable costs of providing the documents, unless you are entitled to reduced fees or fee waivers. For instance, agencies cannot charge representatives of the news media for costs of searching for records. To minimize delay, the 2007 amendments provided agencies with a disincentive to dally — if an agency fails to comply with any time limit of the law, it may not charge the requester search fees for that request, even if the requester is a commercial entity. For requesters not required to pay search fees, such as the news media, the amendments forbid the agency from charging any duplication fees, no matter the volume of the request.

If an agency refuses to disclose all or part of the information, or does not respond within 20 working days to a written FOIA request, you may appeal to the agency’s FOIA Appeals Officer. You may avoid the agency appeal and go directly to court only if the agency does not respond within the required time period. An appropriate agency response is a grant or denial of the requested information. The agency may also appropriately respond that it is extending its time limit for granting or denying the information by up to 10 additional working days if voluminous records must be searched, if records must be retrieved from various offices or if several agencies must be consulted.

If you file an administrative appeal that is denied or not responded to within 20 working days, you can then file a lawsuit in a federal court convenient to you. (See the Sample FOIA Complaint.) If you can demonstrate the need for prompt consideration, you may ask that the court expedite your case. If you win in court, a judge will order the agency to release the records and may award you attorney’s fees and court costs.

Which agencies are covered?

When an agency isn’t an agency

Many federal government entities are not subject to FOIA because they don’t fit the law’s definition of an “agency.”

However, these entities — like the Smithsonian and the Corporation for Public Broadcasting — often follow their own FOIA-like policies. While these policies don’t endow requesters with the same rights in court, they often provide access to records and a method of appeal. The policies should be available by contacting the entity or on its Web site.

In addition, entities such as Freddie Mac and Fannie Mae have significant reporting requirements to the agencies that supervise them. The Securities and Exchange Commission’s records can provide a wealth of information on those entities.

FOIA applies to every “agency,” “department,” “regulatory commission,” “government controlled corporation,” and “other establishment” in the executive branch of the federal government. This includes cabinet offices, such as the departments of Defense, State, Treasury, Interior, and Justice (including the Federal Bureau of Investigation and the Bureau of Prisons); independent regulatory agencies and commissions, such as the Federal Trade Commission, Federal Communications Commission and the Consumer Product Safety Commission; “government controlled corporations” such as the U.S. Postal Service and Amtrak; and presidential commissions. FOIA also applies to the Executive Office of the President and the Office of Management and Budget, but not to the President, his immediate staff, the Office of the Vice President or the Office of Administration, which advises the president.

Not all entities that receive federal funds are covered by FOIA. For example, entities such as the Corporation for Public Broadcasting and the American Red Cross — both of which receive federal funds but are neither chartered nor controlled by the federal government — are not covered.⁴

The Supreme Court also has ruled that a private organization that is established for the sole purpose of carrying out government research contracts and is totally funded by the federal government is not automatically an “agency” subject to FOIA.⁵ However, some entities that receive federal funds but are not subject to FOIA, such as the Smithsonian Institution, voluntarily adopt disclosure policies very similar to FOIA. While asserting its need to protect certain financial and donor data through exemptions that are broader than the Act’s, the Smithsonian has adopted the presumption of disclosure present in FOIA and many other provisions in the law.

FOIA does not apply to Congress, the federal courts, private corporations or federally funded state agencies. Because the military court system was created through Department of Defense regulations and not by the U.S. Constitution, military branches often argue FOIA applies to military court records including court dockets, which can render access to those records very difficult given the delays that accompany most FOIA requests.⁶ Court documents are public because of a First Amendment-based right of access — which also applies to military courts documents.

While the Federal Reserve Board of Governors in Washington, D.C., is covered by FOIA, the 12 regional banks of the Federal Reserve are not considered government agencies and FOIA does not apply to them. Records held by the regional banks — like many of those recently sought in connection with the government’s private-sector financial bailout packages — are not subject to FOIA unless also filed with Washington’s Federal Reserve Board.

Similarly, documents generated by these groups, other branches of the federal government and the states that are filed with executive branch agencies of the federal government become subject to disclosure under FOIA, just as if they were documents created by the agencies. Congressional agencies such as the Library of Congress and the General Accounting Office follow their own records disclosure rules and procedures patterned after FOIA.

The federal FOIA also does not apply to state or local governments. All states have their own “open records” laws that provide access to state and local records. Information on how to use these state laws is available from The Reporters Committee for Freedom of the Press through its “Open Government Guide” — a compendium of open records and meetings laws for each state and the District of Columbia. The compendium is available as a one-volume book, as a CD-ROM or online. Separate booklets on the open government laws of each state are also available.

Asking for records

FOIA is very broad. It covers all “records” in the possession or control of a federal agency. Under the 2007 amendments, this also includes records maintained by entities outside government under a government contract. The term “records” is defined expansively to include all types of documentary information, such as papers, reports, letters, e-mail, films, computer tapes, photographs and sound recordings in any format, including electronic. But physical objects that cannot be reproduced, such as water quality samples kept by the Environmental Protection Agency, are generally not considered “records” under the Act. If in doubt as to whether the material you want is a “record,” assume it is and request it.

An agency’s mere “possession” of documents is sometimes not enough to make them subject to disclosure under FOIA. In determining if a record is an agency record, courts have looked at whether the agency also created, controlled, used, relied upon or filed the documents in its possession. For example, appointment calendars and phone message slips of agency officials that serve some official agency purpose are considered agency records if they are not created solely for personal convenience.⁷ On the other hand, transition team reports prepared by advisers of the president-elect recommending agency priorities are not agency records even when copies of the report are physically located at the agency.⁸

When requesting records, you must “reasonably describe” the material you want. This does not mean you need to know an exact document or docket number, but your request should be specific enough so that a government employee familiar with the subject area can locate the records with reasonable effort, either by physically inspecting files or by using computerized index and retrieval systems.

Your request should be made for existing records only. FOIA cannot be used as a way to compel an agency to answer specific questions you might have, and agencies will be very quick to tell you that they do not have to “create” records under FOIA.⁹ However, if it seems more practical for both you and the agency, you may offer to accept the information you seek in a list or other abbreviated response rather than receive copies of every related individual document.

Do you actually have to file a request?

Most people think of FOIA in terms of requesters: people writing to agencies in search of information. But the Act goes further to make information public. It requires the agencies to make documents available on their Web sites and in physical “reading rooms.”

FOIA requires agencies to publish in the Federal Register any regulations or general policy statements. For instance, each agency must publish its regulations telling the public what rules it will follow in processing FOIA requests. Final regulations are published in the Code of Federal Regulations available at law libraries. The Government Printing Office Electronic Information Enhancement Act of 1993 requires GPO to make these materials available online as well.¹⁰

The Act also requires agencies to make available for inspection or copying final opinions, staff instructions and other information that would affect a member of the public. This is often called the “reading room” requirement — meaning those documents need to be available to the public in a physical reading room.

The Electronic FOIA Amendments of 1996 greatly expanded the requirements that the government take affirmative steps to make information available. It requires government agencies to post online any information created after November 1996 that would have formerly been required to be placed in physical reading rooms. The law further requires that responses to requests likely to be repeated be made available online as well as in paper form. The agencies must index these records for the public and make both the index and the documents available electronically.

Agencies must also develop reference guides to help the public access agency information. These must be available both in the physical reading rooms and online.

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1 FOIA appears in the United States Code at 5 U.S.C. § 552.

2 Memorandum from the Office of the Attorney General to the Heads of Departments and Agencies (Oct. 12, 2001).

3 Memorandum from the Office of the Attorney General to the Heads of Departments and Agencies (Oct. 4, 1993).

4 The Corporation for Public Broadcasting claims it is not covered by FOIA. However, corporation spokespersons say FOIA requests received by the corporation are voluntarily processed in accordance with FOIA.

5 Forsham v. Harris, 445 U.S. 169 (1980).

6 The Reporters Committee spent a year researching the issue of access to military court dockets and proceedings and released a comprehensive white paper and a reporter’s guide.

7 Bureau of National Affairs v. Department of Justice, 742 F.2d 1484 (D.C. Cir. 1984).

8 Wolfe v. Department of Health and Human Services, 711 F.2d 1077 (D.C. Cir. 1983).

9 Zemansky v. Environmental Protection Agency, 767 F.2d 569, 574 (9th Cir. 1985).

10 44 U.S.C. § 4101(a)(1).