The Freedom of Information Act (FOIA)

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. FOIA defines the types of federal government records that are to be made available to citizens, the procedures for obtaining those records, and remedies that are available when government agencies fail to make public records available in response to a legitimate request.

The federal FOIA law does not apply to states or state agencies. However, all states have adopted some form of law that citizens with access to state government records. State laws may be given different names, such as a sunshine act or public records law. Not all state laws are as broad as the federal law, but a few states offer much broader access to public records than is required of the federal government by FOIA.

What Public Records are Covered by FOIA

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

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

What Type of Documents Are Available

A wide range of 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.

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

Under FOIA and related laws, people may ordinarily request that the government provide copies of information it holds about them. For example, although FOIA does not cover FBI records, a U.S. citizen may request a copy of their FBI file under the Privacy Act of 1974.

What Type of Documents Are Not Available?

Exclusions from freedom of information laws, including FOIA, typically include:

  • Records of ongoing investigations by law enforcement agencies;
  • Certain law enforcement records, including records that would reveal the identity of a confidential informant;
  • Internal agency personnel regulations;
  • Classified documents and certain records that 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.

FOIA exceptions are discretionary and not mandatory. Thus, in the absence of a separate prohibition on disclosure such as the bar on unauthorized disclosure of classified information, an agency may choose to disclose information even if it finds that an exception applies.

What Is the Process for Making a FOIA Demand

For many government agencies, when preparing to file a FOIA demand the first step you should take is to contact the agency or review the agency's website, in order 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 standard FOIA form, you can usually save some trouble by utilizing the agency's form to make your records request.

Whether or not you use an agency form or fashion your own, your Freedom of Information Act request will involve the following steps:

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

  7. Include 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 and restrictions may apply to your records request.

Make sure you keep copies of all requests and correspondence, and make a record of your related communication with the agency. 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.

Costs that may normally be charged under freedom of information laws, including FOIA, 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 federal FOIA law

  • A person or entity that requests 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. Waiver is most likely to occur when the agency determines 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 response may be to provide the requested information upon payment of the required fees.
  • If the information is not provided, the agency's response may be that the information request is unclear, that the requested information does not exist, or that the information requested is partially or wholly excluded from disclosure under FOIA.

The agency may argue that there are exceptional circumstances involved in fulfilling your request, and that it is thus entitled to additional time to comply. If the agency requests a delay, ask for a specific date by which they will comply with your request. Inform the agency that its 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 first appeal the issue of non-compliance within the agency. Contact the head of the agency and demand an explanation of why your request has been denied.

If that doesn't work, you may seek help from your government representatives by contacting them to ask that they look into the matter. Note that the representative you contact should be from an appropriate level of government. For the federal FOIA law, you would contact your Member of Congress or U.S. Senator. If you are making a request under state law, you would contact a state representative.

FOIA Litigation

If all else fails, you may consider initiating a legal action to compel disclosure. It is generally a good idea to wait until the request is significantly overdue before commencing a lawsuit, and to work with a lawyer in framing your legal petition.

If you substantially prevail in your lawsuit, federal law and most state laws permit you to recover attorney fees.

lease note that some agencies have been known to abuse this system - they produce the requested documents on the day of the court hearing after you have incurred all of the cost of filing your case and preparing for the hearing, and then inform the court that they are in full compliance with FOIA and are no longer subject to penalties. A lawyer who handles FOIA matters may be able to advise you about the practices of the agency from which you are attempting to recover records.

Copyright © 2014 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 7, 2018.