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.

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).