Federal Open Government Guide

President Bush, left, walks down the steps of the Treasury Department with former Treasury Secretary Henry Paulson after the House of Representatives passed the $700 billion financial bailout bill Oct. 3, 2008. Some news organizations attempting to obtain Treasury Department records on the issue have filed lawsuits after their FOIA requests were denied.

AP Photo by Charles Dharapak

Who may use FOIA?

A FOIA request may be made by “any person.” This means that all U.S. citizens, as well as foreign nationals, can use the Act to request information from government agencies. A request can also be made in the name of a corporation, partnership or other entity, such as a public interest group or news organization. Members of the news media have no more and no fewer rights to information under FOIA than other requesters, although the law gives journalists some rights to fee benefits and expedited processing. To obtain information, you do not need to tell the agency why you are making a request. However, advising the FOIA officer that you are a journalist or author and intend to publish some or all of the requested information may encourage prompt consideration of your request and entitle you to fee benefits.

Try the informal approach first

Anyone seeking information from government documents should first try to obtain the documents through informal means. The government may agree to supply all or part of them on the spot. Assuming you know with reasonable specificity which records you want and which agency has them, call the public information or press officer at the agency involved, identify yourself as a news reporter, researcher or scholar, and ask for the information. It might be helpful to offer some explanation of why you want the documents but you are not required to give one.

If you are turned down, try the agency’s FOIA officer, who may tell you how to obtain the documents you want without filing a formal FOIA request. If necessary, use your right to make a formal FOIA request as leverage in your efforts to persuade the agency to release the information you are seeking informally. Make a point of telling any officials with whom you speak that you intend to make a formal request. Remember that only a written FOIA request — not an informal, oral request — will place the agency under a legal duty to act on it.

Making a formal request: A simple letter is all you need

If the informal approach does not succeed, exercise your rights under FOIA to make a formal request. To preserve all your rights under the Act, your formal request must be made in writing. Any reporter should be able to prepare a request letter on his or her own. (See our online FOIA Request Letter.)

Each federal agency subject to FOIA has a designated FOIA Service Center and a Chief FOIA Officer responsible for managing information requests. Large cabinet agencies, such as Defense and Agriculture, have separate FOIA Service Centers for their various subdivisions and regional offices. If you are sure which subdivision of an agency has the records you want, send your request letter directly to that FOIA officer. If you are uncertain, send your request to the agency or departmental FOIA officer, who will then forward it to the appropriate division. You will save time by calling the agency first to determine where the records you seek are located and where you should direct your request. (See our updated list of agency FOIA officers and their contact information.)

Sometimes it is advisable to send separate requests to agency headquarters and to field offices that may have records you want. The FBI, for example, searches its field offices for records only when requests are made directly to those offices; a request to the bureau in Washington, D.C., will lead only to a search of its central files. If you are unsure which federal agency or office has the records you want, send the same request to several of them.

Address your request letter to the FOIA officer at the appropriate agency or subdivision. Agencies will accept a request by hand delivery, mail or e-mail. If you mail your request, mark the outside of the envelope “FOIA Request.” If you send the request by registered mail with return receipt requested, you may be able to track the request if you should later need to do so. Keeping a photocopy of your letter and your receipt will also help you later if you need to make an appeal. Some agencies, like the National Oceanic and Atmospheric Administration and the National Aeronautics and Space Administration, have built FOIA request generators into their Web sites to receive requests electronically. All agencies are required to accept FOIA requests via e-mail.

Generally, a request letter should contain the elements included in the Sample FOIA Request Letter. However, any written request is covered by FOIA. In most cases, you should be able to draft a simple request letter by yourself. The Reporters Committee provides an online FOIA letter generator
(www.rcfp.org/foialetter) that asks a requester to simply fill in the required information, and produces a request letter. If you are a journalist and need assistance, you can call the Reporters Committee’s FOIA attorneys on our toll-free hotline at 1-800-336-4243 or send e-mail to
hotline@rcfp.org.

Paying fees

Agencies may charge “reasonable” fees for the “direct” costs of searching for and copying the records you request, unless you are entitled to fee benefits or waivers. (For instance, representatives of the news media do not pay search fees; see below.) Search fees generally range from $11 to $28 per hour, based on the salary and benefits of the employee doing the search. Fees for computer time, which are described in each agency’s FOIA regulations, vary greatly. They may be as high as $270 per hour. Photocopying costs are normally between 3 and 25 cents per page.

Search fees may be charged even if few or no documents are located in response to your request. Unless you are requesting information for a commercial use, agencies may not charge you for the time they spend examining files to determine what individual documents should be exempt from disclosure or for deleting material in those documents. News media requests are not considered “commercial” uses.

A “representative of the news media” is a person or entity that gathers and disseminates information of current interest to the public. In addition to traditional broadcasters and periodicals, it encompasses freelance journalists and sometimes bloggers if they “can demonstrate a solid basis for expecting publication” with a particular news-media entity, which might include a blog.

Agencies may not require advance payment of any fee under $250 unless the requester has previously failed to make timely payment. Despite this, many agency regulations require that you agree to pay any anticipated fees in excess of $25 before they process your request.

On rare occasions, some agencies have “aggregated” multiple requests by a requester or group of related requesters, defining them as a single request in order to limit fee benefits. Agency regulations permitting this practice require that the requests clearly be related.

Before making your FOIA request you may want to obtain an estimate of the search and duplication fees. These will vary based on the category of requester you fit into (discussed below). In some cases, the agency’s FOIA officer can give you this information by telephone. As an alternative, state in your request letter your willingness to pay fees up to a certain limit and ask to be contacted by telephone or letter if the fees are likely to exceed that amount. (See Sample FOIA Request Letter.)

FOIA requires agencies to publish in the Federal Register uniform schedules for search and reproduction fees. You may also obtain a fee schedule by contacting the agency FOIA officer.

Fee waivers

You may ask the agency to waive or reduce search and copy fees if you think the fees are too high, or if the fees are fair but the total charges make the request prohibitively expensive. The law provides that the agency “shall” waive or reduce fees if you meet the public interest test described below. And you may be entitled to fee benefits if you fall within a certain category of requester.

The FOIA Reform Act of 1986 set out specific fee provisions for four categories of requesters: (1) commercial use requesters must pay fees for document search, duplication and review; (2) non-commercial requesters from educational or scientific institutions pay no search fees and receive 100 pages of free duplication;
(3) representatives of the news media pay no search fees and receive copies of 100 pages free; (4) all other requesters receive two hours of search time and copies of 100 pages free.¹¹

The Office of Management and Budget issued guidelines for federal agencies to use in writing fee schedules, defining each category of requester.¹²

You will be considered a representative of the news media if you are actively gathering “news” for an organization that publishes or broadcasts news to the public. That may include bloggers, depending on the manner of publication. An appeals court has ruled that a book author who culls and edits information from documents is entitled to the fee benefits due to representatives of the news media.¹³

The guidelines attempt to define “news” as information about current events or of current interest to the public. Your request should explain how information sought would meet this definition.

News organizations using new technologies to distribute information qualify if they “perform an active rather than passive role in dissemination” of news. Newsletters generally are included in this category.

The guidelines specifically exclude libraries, which store information and make it available on request, from the definition of “news media.”¹⁴

A freelancer may qualify as a representative of the news media by demonstrating a solid basis for expecting publication. A beginning freelancer might have to show a reasonable expectation that a story will be published, perhaps evidenced by a publication contract. Past publication also may assist the agency in making a freelance determination.

Educational institutions also qualify for free search time and copies of 100 pages of documents at no charge. This benefit is available only to requesters from schools with scholarly research programs and when disclosure will serve “a scholarly research goal of the institution, rather than an individual goal.”

Similar treatment is given to requests from scientific institutions when information is requested “solely for the purpose of conducting scientific research, the results of which are not intended to promote any particular product or industry.”

All other non-commercial requesters, such as nonprofit organizations, pay for document-search time in excess of two hours and duplication in excess of 100 pages.

Commercial-use requesters must pay all costs, including the salaries and benefits of personnel while they decide whether to release information. OMB says these fees are chargeable if disclosure “furthers the commercial, trade, or profit interests of the requester.” An agency will consider the identity of the requester in deciding if the request is for commercial use. Remember, news dissemination is not a commercial use.

Whether or not you are in a category of requesters who receive fee benefits, you may be entitled to a waiver or reduction of fees if disclosure of information is “in the public interest.”

Under language added to FOIA in 1986, a requester is entitled to a waiver or reduction of fees where “disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.”

Congressional authors of this language said in floor statements that they intended that this provision make more requesters eligible for fee waivers.

However, while federal agencies were preparing new fee regulations, the Justice Department issued a lengthy and controversial memorandum saying that the public interest standard under the 1986 amendments would be more difficult for requesters to meet.¹⁵ It outlined six criteria agencies should consider before granting fee waivers. You may wish to address these criteria in your request for a fee waiver.

A waiver may be granted if:

• The subject of the requested records concerns government operations and activities.

• The disclosure is likely to contribute to understanding of these operations or activities.

• Disclosure will likely result in public understanding of the subject.

• The contribution to public understanding of government operations or activities will be significant.

• The requester has a limited commercial interest in the disclosure.

• The public interest in disclosure is greater than the requester’s commercial interest.

The last two factors concern the commercial value of the request to the requester. The memo says dissemination of news to the public is not a commercial activity, so news media requesters need to address only the first four criteria if they are seeking more than 100 pages.

Experience shows that requesters seeking a relatively modest number of documents are more likely to be granted fee waivers than those whose requests encompass thousands of pages. In this regard, you may want to show that you have narrowed your request as much as possible and therefore are not unduly burdening the agency.

You may appeal any agency decision regarding fee categories or waivers just as you would an agency’s decision to withhold information. If you are a journalist, call the Reporters Committee for assistance.

A fee waiver request and a request for consideration as a representative of the news media are included in the Sample FOIA Request Letter.

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11 Freedom of Information Reform Act of 1986, Pub. L. No. 99-570, §§ 1801-1804, 100 Stat. 3248 (1986).

12 Office of Management and Budget Uniform Freedom of Information Act Fee Schedule and Guidelines, 52 Fed. Reg. 10,012 (1987).

13 Nat’l Security Archive v. Dep’t of Defense, 880 F.2d 1381 (D.C. Cir. 1989), cert. denied, 494 U.S. 1029 (1990).

14 See Nat’l Security Archive v. Dep’t of Defense, above.

15 Memorandum from Assistant Attorney General, Office of Legal Policy, U.S. Department of Justice, to the Heads of Federal Agencies (Apr. 2, 1987).