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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?

From the First Amendment Handbook

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

How do I make a records request?

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. 

What governmental bodies are subject to open records laws?

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. 

What kinds of records are not required to be disclosed under open records laws?

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. 

How much can the government charge me for providing me records? Am I ever able to get records for free?

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.

Does it matter why I want a record? Can the government demand that I justify the reasons why I want a record?

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. 

Can I demand records in a particular format? Must I accept paper printouts or can I demand an electronic copy of 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

How large of a request can I make? Can the government refuse to process my request if it believes it is too burdensome?

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. 

My records request was denied. What do I do now?

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

What kinds of government meetings do I have a right to attend? When does a “meeting” occur?

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.   

When can the government close meetings to the public?

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.

More FAQs

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

More topics:

Entities Subject to the Law

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

Fees

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

Exemptions

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.

Access to electronic records

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."

Appeals and Enforcement

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. 

Open Meetings

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.

Recent news articles from our web site:

February 17, 2017 - U.S.
As FBI, others move to FOIA portals, email options disappear
August 31, 2016 - U.S.
Report on survey of journalists' views on "release to one, release to all" FOIA policy
July 25, 2016 - U.S.
Chief FOIA Officers Council meets for the first time
July 15, 2016 - 6th Cir.
Sixth Circuit limits access to federal mug shots
July 13, 2016 - U.S.
Senate committee considers what's next for FOIA
July 7, 2016 - Georgia
District attorney drops charges against jailed Georgia journalist, attorney
July 6, 2016 - District of Columbia
Court rules FOIA can apply to private email accounts
June 30, 2016 - U.S.
President Obama Signs FOIA Reform Bill into Law on 50th Anniversary
June 29, 2016
More states set privacy restrictions on bodycam video
June 15, 2016 - New York
State police win right to "neither confirm nor deny" records exist

From Our Handbooks & Guides

Since stringent medical privacy regulations went into effect in 2003, the media have been forced to learn the new rules, work around them in some cases, and in others battle them in court.

Yet the Health Insurance Portability and Accountability Act's privacy rule remains a prickly issue for reporters, hampering routine reporting assignments and big investigative pieces.

<a href="http://www.rcfp.org/hipaa/">A Reporter's Guide to Medical Privacy Law</a>

As technology brings electronic communications such as e-mail, text messaging and instant messaging into the mainstream of workday activity, governments from the federal down to the local levels are charged with evaluating how to treat those communications. Are they public records, subject to release just as any other record? Can the activity that occurs in those exchanges constitute a “meeting”? While new cases and legislation may specifically address these and related issues, many governments are still figuring out how to treat their electronic communications.

<a href="http://www.rcfp.org/ecommunications/">Access to electronic communications</a>

A reporter’s state-by-state access guide to law enforcement records. Although most states provide for the release of information about arrests and criminal convictions, there have been at least two recent movements aimed at hiding this valuable information from public view.

<a href="http://www.rcfp.org/policerecords/">Access to Police Records</a>

All significant aspects of civic life in the United States are affected by the federal government. The news media — including print, online and broadcast journalists — regularly inform the public about the policies and actions of government.

The public’s ability to receive information about government has been significantly enhanced by the federal Freedom of Information Act, passed in 1966; the Federal Advisory Committee Act, passed in 1972; and the Government in the Sunshine Act, passed in 1976.

<a href="http://www.rcfp.org/fogg/">Federal Open Government Guide</a>

The federal laws that control the information a state can disclose about its citizens are usually meant to protect individual privacy rights, but many open government experts say states are interpreting the laws too broadly and it is interfering with journalists’ newsgathering ability.

<a href="http://www.rcfp.org/ferpa_hipaa_dppa/">FERPA, HIPAA & DPPA: How federal privacy laws affect newsgathering</a>

The Open Government Guide is a complete compendium of information on every state's open records and open meetings laws. Each state's section is arranged according to a standard outline, making it easy to compare laws in various states.

<a href="http://www.rcfp.org/ogg/">Open Government Guide</a>

Confidentiality issues and access to police investigation records.

<a href="http://www.rcfp.org/pullouts/private_eyes/">Private Eyes</a>

A look at how government out-sourcing of services affects access to records.

<a href="http://www.rcfp.org/privatization/">Privatization v. the public's right to know</a>

As recent history shows us, few stories are more important to the every day lives of Americans than those that deal with life-and-death struggles of the business community. For those reporters who have made a career of business news coverage, this guide describes the tip of the iceberg of knowledge. But for those just beginning, or reporters who cover business only occasionally, this guide to business records and proceedings hopefully will serve as a basic “how-to” guide that helps you get started.

<a href="http://www.rcfp.org/sunshineinc/">Sunshine Inc.: The basics of covering business organizations</a>

Recent articles from our quarterly magazine, The News Media & The Law:

Summer 2016
What the FOIA reform act means to you
Spring 2016
Police policies a mixed bag
Winter 2016
Private email, government business
Winter 2016
FixFOIAby50 gains momentum
Winter 2016
Florida forecast cloudy, but now with a chance of sunshine
Fall 2015
When does the public get public records?
Fall 2015
Challenging classification: a third option
Summer 2015
Shall I compare thee to a newspaper?
Summer 2015
Obtaining government officials' business email should be easier
Summer 2015
Closed Doors