Introduction to FOIA Requests

The Freedom of Information Act (FOIA) gives the United States public the right to request access to records from federal agencies.[1] Enacted in 1966, it allows any person, including U.S. citizens, foreign nationals, and organizations, to obtain copies of records created or obtained by a federal agency that are in the agency’s possession or control at the time of the request.

Format of Requests

There is no specific format required for FOIA requests, but they must be in writing and reasonably describe the records sought.[2] Many agencies accept requests electronically.[3] The government recommends that requesters check to see if the information they seek is already publicly available.[4]

Where to Send Requests

FOIA requests can be made to federal regulatory agencies; federal corporations; and executive branch departments, agencies, and offices; but not to Congress, the federal courts, and certain offices whose sole function is to advise and assist the President. Agencies must provide the public with guidance on submitting an FOIA request, which is often available on their websites. Often, researching which agency or office of the agency holds the records you seek before sending a request results in the most success in obtaining records.

Fees

Obtaining records under the FOIA often costs money. Depending on the type of person or institution requesting the records, agencies are entitled to charge for search, review, and copying costs. A requester may obtain a fee waiver if the request 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.”[5] FOIA requests should ask the agency to notify the requester if costs will exceed a certain amount.

Results

Federal agencies must release the records unless they fall under a series of exemptions that protect classified, privileged, and private information.[6] However, agencies often differ in their responses to FOIA requests. Some may choose to withhold information that others release, or they may redact the same record in a different way. Other agencies, such as the CIA, can simply claim they fall under the exemptions. The CIA may also neither confirm nor deny the existence of sought records (known as the “Glomar response” after a court case). Also, many federal agencies have backlogs of FOIA requests, although the law states that a response should be made within twenty days.[7] Targeting your request by requesting specific records from a specific office of an agency, as well as following up with the agency, can help.

Appeals

The requester can appeal an agency’s response to an FOIA request by following agency guidelines on appeals, which generally involves emailing or writing to the agency. Determination of an appeal should happen within twenty days.[8] Once administrative remedies are exhausted, the requester can file a lawsuit.[9]

Final Thoughts

This article is a brief introduction to FOIA requests, and there is much more information available about the FOIA.[10] Exemptions in particular can frustrate many FOIA requests, so know your rights before submitting one.

 

— By Julia Damron, Esq., Barnes Law

Julia Damron is an associate attorney with Barnes Law, licensed to practice law in California.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

 

[1] The FOIA can be found at 5 U.S.C. § 552.

[2] 5 U.S.C. § 552(a)(3)(A).

[3] This website guides users to FOIA submission information for a variety of agencies: https://www.foia.gov/report-makerequest.html. In addition, several agencies allow electronic submission and tracking through a portal: https://foiaonline.regulations.gov/foia/action/public/home.

[4] For example, FOIA data and reports are available at the following websites: https://www.data.gov/; and https://www.foia.gov/data.html. Many organizations also post data obtained through FOIA requests online.

[5] 5 U.S.C. § 552(a)(4)(A)(iii).

[6] 5 U.S.C. § 552(b).

[7] 5 U.S.C. § 552(a)(6)(A)(i); 5 U.S.C. § 552(a)(6)(B).

[8] 5 U.S.C. § 552(a)(6)(A)(ii).

[9] 5 U.S.C. § 552(a)(4)(B); see 5 U.S.C. § 552(a)(6)(C).

[10] Other sources used in preparing this article include:

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