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The Freedom of Information Act

By Aaron Larson

Law Offices of Aaron Larson

September, 2003

Contents

What Is the Freedom of Information Act

The Freedom of Information Act (FOIA) was passed by Congress in 1966, based upon the principle that openness in government and availability of government records will help citizens stay informed about government and advance the principles of democracy. Since that time, all states and most Canadian provinces have adopted some form of a Freedom of Information Act, providing citizens with access to government records.

A typical Freedom of Information Act outlines the types of government records which are to be made available to citizens, the procedures for obtaining those records, and remedies for when government agencies fail to make records available in response to a legitimate FOIA request.

Who Is Governed by FOIA Laws?

Only government agencies are covered by FOIA laws. Private organizations, businesses and companies are not governed by FOIA. Examples of the type of agency covered include:

In the United States, the federal courts, Congress, and Executive Office staff (such as advisors to the President) are excluded from FOIA.

What Type of Documents Are Typically Available?

Most government documents are covered by FOIA laws, including:

  • Information about an agency's operation, including its history of actions, and its expenditures;
  • Statistics and information collected by an agency;
  • Final opinions of courts and administrative agencies, including concurring and dissenting opinions;
  • Final orders and written agreements made in the adjudication of cases;
  • Statements of policy and interpretations which have been formally adopted by the agency;
  • Administrative staff manuals and instructions to staff that affect the public;
  • Laws, codes, statutes, and regulations governing corporate and individual conduct.

Under FOIA provisions and related laws, individuals may ordinarily request that the government provide copies of information it holds about them. For example, U.S. citizens may request a copy of their FBI file under the "Privacy Act".

Records may be in a variety of forms, including paper documents, and computer and electronic records, including email.

What Type of Documents Are Typically Not Available?

Typical exclusions from this type of Act include:

  • Records of ongoing investigations by law enforcement agencies;
  • Certain law enforcement records, including records which would reveal the identity of a confidential informant;
  • Internal agency personnel regulations;
  • Classified documents and certain records which "reasonably could be expected to cause damage to the national security" if disclosed;
  • Certain confidential information, including trade secrets, commercial or financial information obtained from a person and that is privileged or confidential;
  • Personnel and medical files;
  • Information contained in inter- or intra-agency memorandums or letters that would not be available by law to a party (other than an agency) in litigation with an agency;
  • Records related to the examination, operation or condition of certain financial institutions which are subject to federal regulation; and
  • Geological and geophysical information concerning oil well locations.

Typically, exceptions are discretionary and not mandatory, meaning that an agency may choose to disclose information even if it finds that an exception applies.

What Is the Process for Making a FOIA Request?

With many government agencies, the first step you should take is to contact the agency or review the agency's website to see if they have a special FOIA request form, and to find out the address for their FOIA officer - the person who is assigned to process FOIA requests. If the agency has a form, you can usually save some trouble by utilizing the agency's form.

To make a Freedom of Information Act request, you will typically submit a letter request which does the following:

  1. Write a letter to the agency, to the attention of the FOIA Officer. (It is okay if you do not know the name of that person - you can simply refer to the "FOIA Officer" or "FOIA Unit". However, it is good practice to try to actually get the name of the person who will be responsible for handling your request, and submitting the request directly to that person's attention, using both their name and title.)

  2. Include your name, address of the requester, and the telephone number at which you can be reached during normal business hours;

  3. Describe as specifically as possible the information you wish the agency to disclose;

  4. Describe how you wish the agency to respond if your request is denied in whole or in part. (e.g., "In the event that my request is denied in whole or in part, please justify all deletions by reference to specific exemptions of the Act. Please note that I expect you to release all segregable portions of otherwise exempt material, and reserve the right to appeal your decision to withhold any of the information I have requested.)

  5. Describe whether the requested information is intended for commercial or non-commercial use, and state whether you represent an educational or noncommercial scientific institution, or are a representative of the news media;

  6. States your agreement to pay the applicable fees, and expresses any desired fee limitation; and

  7. Includes any request for a waiver or reduction of fees, in proper form under the governing statute and agency rules.

If the request is being made in association with ongoing litigation, additional rules may apply.

Make sure you keep copies of all requests and correspondence. Similarly, if you have phone conversations with somebody in the agency about your request, make a note with the date and time of the call, the name of the person with whom you spoke, and the substance of the discussion.

What Does a FOIA Request Cost?

The cost of the request varies upon the amount and nature of information requested, and the difficulty of retrieving and providing copies of that information. You can request a fee schedule from the government agency in advance of making your request. Typical costs include:

  • The cost of searching for the requested documents;
  • The cost of reviewing the documents to determine if they should be included in the response to your request; and
  • The cost of duplication.

Under the U.S. Federal Freedom of Information Act, persons or entities requesting information for commercial use will be assessed all three categories of cost. Requests for non-commercial use will be assessed the cost of searching and duplication. Requests on behalf of an educational or non-commercial scientific institution, or made as a representative of the news media, are assessed only the cost of duplication.

You can indicate in your FOIA request how much you are willing to pay for the information. That way if the cost will exceed the amount you expect, the agency will contact you before you incur a greater expense. Under some circumstances, the agency may be willing to waive part or all of the cost, usually when it is determined that the request made is in the public interest - that is, that the information will significantly help the public understand the activities or operations of the agency to which the request was made.

What Happens After Your Request Is Received

After a government agency receives a FOIA request, it is given a statutorily defined period to respond to the request. The reponse may be that the request is unclear, that the requested information does not exist, that the information requested is partially or wholly excluded from disclosure under FOIA, or the agency may provide the requested information subject to the fees described above.

The agency may argue that there are exceptional circumstances involved in fulfilling your request, and thus that they are entitled to additional time to comply. If they request a delay, ask for a specific date by which they will comply with your request, and inform them that their failure to comply by that date will be deemed as a denial of your request, and may result in your commencing an appeal or legal action to compel compliance.

Remedies for Non-Compliance

If an agency's FOIA officer will not properly comply with your request, you may wish to first appeal within the agency, contacting the head of the agency and demanding an explanation of why your request has been denied. If that doesn't work, you may wish to write to your government representatives, asking that they look into the matter. Note that the representative you contact should be from an appropriate level of government - that is, if the non-compliance is by a state or provincial agency, you would contact your state or provincial representatives, not your federal representatives.

If all else fails, you can consider initiating a legal action to compel disclosure. It is generally a good idea to wait until the request is significantly overdue before commencing legal action, and to work with a lawyer in framing your legal petition. If you subustantially prevail in your action, most FOIA laws will permit you to recover attorney fees. Please note that some agencies have been known to abuse this system - they will produce the requested documents on the day of the court hearing, and then inform the court that they are in full compliance with FOIA, arguing that they are no longer subject to penalties even though the person making the FOIA request has incurred expenses associated with the court action.

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