The FOI Act is very broad. It covers all “records” in the possession or control of a federal agency. The term “records” is defined expansively to include all types of documentary information, such as papers, reports, letters, films, computer tapes, photographs and sound recordings. But physical objects which cannot be reproduced, such as the rifle used to assassinate President John F. Kennedy, 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 the FOI Act. 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.⁶ 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.⁷

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 a reasonable amount of effort, either by physically inspecting files or by using computerized index and retrieval systems.

Your request should be made for existing records only. The FOI Act 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 the FOI Act.⁸ 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 in copies of source documents.

Next section: Do you have to file a request for any information you want?