The federal FOI Act¹ gives you access to all records of all federal agencies in the executive branch, unless those records fall within one of nine categories of exempt information which agencies are permitted (but generally not required) to withhold.

In October 2001, U.S. Attorney General John Ashcroft announced a new standard for federal agencies to use in considering whether to invoke an exemption. He encouraged them to fully consider reasons for invoking exemptions to the FOI Act, and assured agency personnel that the Justice Department would fully defend 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

The Ashcroft memorandum represented a flip-flop in tone from the guidance issued in 1993 by Attorney General Janet Reno. She had instructed agencies to avoid the use of “discretionary” exemptions. Even if requested information arguably or technically fell within an exemption, agencies would were not to invoke that exemption unless they could point to a “foreseeable harm” that would occur as a result of the disclosure.³

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 the FOI Act only by filing a written request. See Appendix A for a sample request letter. Once you have filed an FOI Act request, the burden is on the government to release the documents promptly or to show that they are covered by one of the Act’s exemptions.

At all agencies a designated FOI officer is responsible for responding to FOI Act requests. According to the statute, the agency must respond to your written FOI Act request within 20 working days; however, as a practical matter, agencies frequently extend the time for response. Before Congress passed the Electronic FOI Improvements Act of 1996, some federal courts had allowed agencies to delay responses if they had a backlog of requests to process. The agency had to have developed a procedure for handling the backlog which ensured that responses would be made in a reasonable and timely fashion — usually on a first-in, first-out basis. The new Act allows agencies to delay responses when “extraordinary circumstances” exist, but does not allow the agencies to consider routine backlogs “extraordinary.”

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 the FOI Act.

If you have an urgent need for the information, you should ask for “expedited review.” You are entitled to expedited review 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 review for additional categories of records. For instance, the Justice Department grants expedited review for requests concerning issues of government integrity that have already become the object of widespread national media interest. That agency also grants expedited review if delay might cause the loss of substantial due process rights.

An agency may charge you the reasonable costs of providing the documents; however, you may be entitled to reduced fees or fee waivers. For instance, agencies cannot charge representatives of the news media for costs of searching for records.

If an agency refuses to disclose all or part of the information, or does not respond within 20 working days to a written FOI Act request, you may appeal to the agency’s FOI 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, records must be retrieved from various offices or 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 FOI Act Complaint reproduced in Appendix C. If you can demonstrate the need for prompt consideration, you may ask that the court give expeditious consideration to your case. If you win in court, a judge will order the agency to release the records and may award you attorneys fees and court costs.

Next section: What agencies are covered?