The Freedom of Information Act

FOIA applies to federal agencies. The Act defines an agency to include any executive department, military department, Government corporation, Government controlled corporation, other establishment in the executive branch (including the Executive Office of the President), or independent regulatory agency (552(f)(1)). The underlying definition in 5 U.S.C. 551(1) excludes Congress and the courts of the United States.

FOIA does not reach state or local government records. Each state has its own public records law, with its own procedures, deadlines, and exemptions.

A request must reasonably describe the records sought and be made in accordance with the agency’s published rules on time, place, fees, and procedures (552(a)(3)(A)). There is no central FOIA office. Each agency processes its own records, so a request goes to the FOIA office of the agency or component likely to hold them.

According to FOIA.gov, a person seeking records about themselves must certify their identity, by a notarized statement or a statement signed under penalty of perjury.

Each agency sets a fee schedule by regulation. The Act sorts requesters into three categories (552(a)(4)(A)(ii)):

• Commercial use. Reasonable standard charges for search, duplication, and review.
• Educational or noncommercial scientific institutions, and news media. Duplication charges only, when the records are not sought for commercial use.
• All other requesters. Search and duplication charges.

For requesters in the second and third categories, no fee may be charged for the first two hours of search time or the first one hundred pages of duplication. No fee may be charged if the costs of routine collection and processing of the fee are likely to equal or exceed the fee (552(a)(4)(A)(iv)).

Fees are waived or reduced if disclosure “is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester” (552(a)(4)(A)(iii)). An agency may not require advance payment unless the requester has failed to pay on time before or the fee will exceed $250 (552(a)(4)(A)(v)). An agency that misses a time limit generally may not charge search fees (552(a)(4)(A)(viii)).

The agency must decide whether to comply within 20 days, excepting Saturdays, Sundays, and legal public holidays, and tell the requester the decision, the reasons, and the right to seek help from its FOIA Public Liaison (552(a)(6)(A)(i)). In unusual circumstances, the agency may extend the deadline by written notice, generally by no more than ten working days. If the request still cannot be processed in time, the agency must give the requester a chance to limit its scope or arrange another time frame (552(a)(6)(B)).

Agencies must provide expedited processing when the requester shows a “compelling need,” and may provide it in other cases their regulations set. A compelling need means either a failure to get the records quickly could reasonably be expected to pose an imminent threat to the life or physical safety of an individual, or, for a person primarily engaged in disseminating information, there is urgency to inform the public about actual or alleged federal government activity. The showing must be certified as true and correct, and the agency must decide whether to expedite within 10 days (552(a)(6)(E)).

Section 552(b) lists nine exemptions. In summary:

• (b)(1) Properly classified national defense or foreign policy information.
• (b)(2) Information related solely to internal personnel rules and practices.
• (b)(3) Information specifically exempted from disclosure by another statute that meets the Act’s criteria.
• (b)(4) Trade secrets and commercial or financial information obtained from a person that is privileged or confidential.
• (b)(5) Inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency. The deliberative process privilege does not apply to records created 25 years or more before the date of the request.
• (b)(6) Personnel, medical, and similar files where disclosure would be a clearly unwarranted invasion of personal privacy.
• (b)(7) Records compiled for law enforcement purposes, to the extent release could cause one of six listed harms, such as interfering with enforcement proceedings or revealing a confidential source.
• (b)(8) Examination, operating, or condition reports about financial institutions.
• (b)(9) Geological and geophysical information and data, including maps, concerning wells.

An exemption is not automatic. An agency may withhold information only if it reasonably foresees that disclosure would harm an interest an exemption protects, or if disclosure is prohibited by law (552(a)(8)). Any reasonably segregable portion of a record must be released, with the amount deleted and the exemption used indicated on the released portion, unless that indication would harm an interest the exemption protects (552(b)).

Separately, three exclusions in 552(c) let an agency treat certain law enforcement and national security records as not subject to the Act, such as records of a criminal investigation whose subject is unaware of it, where disclosure could interfere with enforcement.

When a request is denied in whole or part, the agency must tell the requester of the right to appeal to the head of the agency within a period of not less than 90 days, and of the right to seek dispute resolution from the FOIA Public Liaison or the Office of Government Information Services (552(a)(6)(A)(i)). The agency must decide an appeal within 20 working days (552(a)(6)(A)(ii)). The Office of Government Information Services, part of the National Archives, offers mediation as an alternative to litigation.

A requester may sue in federal district court. The court decides the matter de novo, may review the records in camera, and “the burden is on the agency to sustain its action” (552(a)(4)(B)).

• Describe the records precisely: subject, date range, offices, and record types.
• State your fee category and the maximum you agree to pay. Ask for a fee waiver only when the public interest test fits.
• Keep the tracking number, request date, and every letter. Deadlines and appeal periods run from them.
• Read the denial for the exemptions cited and any estimate of what was withheld, and note the appeal deadline.

• 5 U.S.C. 552, Public information; agency rules, opinions, orders, records, and proceedings
• 5 U.S.C. 551, Definitions
• U.S. Department of Justice, Office of Information Policy, The Freedom of Information Act, 5 U.S.C. 552
• U.S. Department of Justice, Guide to the Freedom of Information Act
• FOIA.gov, Frequently Asked Questions