Which agencies are covered?

When an agency isn’t an agency

Many federal government entities are not subject to FOIA because they don’t fit the law’s definition of an “agency.”

However, these entities — like the Smithsonian and the Corporation for Public Broadcasting — often follow their own FOIA-like policies. While these policies don’t endow requesters with the same rights in court, they often provide access to records and a method of appeal. The policies should be available by contacting the entity or on its Web site.

In addition, entities such as Freddie Mac and Fannie Mae have significant reporting requirements to the agencies that supervise them. The Securities and Exchange Commission’s records can provide a wealth of information on those entities.

FOIA applies to every “agency,” “department,” “regulatory commission,” “government controlled corporation,” and “other establishment” in the executive branch of the federal government. This includes cabinet offices, such as the departments of Defense, State, Treasury, Interior, and Justice (including the Federal Bureau of Investigation and the Bureau of Prisons); independent regulatory agencies and commissions, such as the Federal Trade Commission, Federal Communications Commission and the Consumer Product Safety Commission; “government controlled corporations” such as the U.S. Postal Service and Amtrak; and presidential commissions. FOIA also applies to the Executive Office of the President and the Office of Management and Budget, but not to the President, his immediate staff, the Office of the Vice President or the Office of Administration, which advises the president.

Not all entities that receive federal funds are covered by FOIA. For example, entities such as the Corporation for Public Broadcasting and the American Red Cross — both of which receive federal funds but are neither chartered nor controlled by the federal government — are not covered.4

The Supreme Court also has ruled that a private organization that is established for the sole purpose of carrying out government research contracts and is totally funded by the federal government is not automatically an “agency” subject to FOIA.5 However, some entities that receive federal funds but are not subject to FOIA, such as the Smithsonian Institution, voluntarily adopt disclosure policies very similar to FOIA. While asserting its need to protect certain financial and donor data through exemptions that are broader than the Act’s, the Smithsonian has adopted the presumption of disclosure present in FOIA and many other provisions in the law.

FOIA does not apply to Congress, the federal courts, private corporations or federally funded state agencies. Because the military court system was created through Department of Defense regulations and not by the U.S. Constitution, military branches often argue FOIA applies to military court records including court dockets, which can render access to those records very difficult given the delays that accompany most FOIA requests.6 Court documents are public because of a First Amendment-based right of access — which also applies to military courts documents.

While the Federal Reserve Board of Governors in Washington, D.C., is covered by FOIA, the 12 regional banks of the Federal Reserve are not considered government agencies and FOIA does not apply to them. Records held by the regional banks — like many of those recently sought in connection with the government’s private-sector financial bailout packages — are not subject to FOIA unless also filed with Washington’s Federal Reserve Board.

Similarly, documents generated by these groups, other branches of the federal government and the states that are filed with executive branch agencies of the federal government become subject to disclosure under FOIA, just as if they were documents created by the agencies. Congressional agencies such as the Library of Congress and the General Accounting Office follow their own records disclosure rules and procedures patterned after FOIA.

The federal FOIA also does not apply to state or local governments. All states have their own “open records” laws that provide access to state and local records. Information on how to use these state laws is available from The Reporters Committee for Freedom of the Press through its “Open Government Guide” — a compendium of open records and meetings laws for each state and the District of Columbia. The compendium is available as a one-volume book, as a CD-ROM or online. Separate booklets on the open government laws of each state are also available.

4 The Corporation for Public Broadcasting claims it is not covered by FOIA. However, corporation spokespersons say FOIA requests received by the corporation are voluntarily processed in accordance with FOIA.

5 Forsham v. Harris, 445 U.S. 169 (1980).

6 The Reporters Committee spent a year researching the issue of access to military court dockets and proceedings and released a comprehensive white paper and a reporter’s guide.