Requesting Government Records: Freedom of Information Act

An "agency" subject to FOIA is defined in the Act as any federal executive branch organization or independent government agency; or subunit of either which exercises the authority of the United States government. 5 U.S.C. §552(f). This definition has been clarified by case law, and includes:

• Executive departments (Baldrige v. Shapiro (1982) 455 U.S. 345)
• Regulatory commissions and boards (N.L.R.B. v. Sears, Roebuck & Co. (1975) 421 U.S. 132)
• Military departments (Dept. of Air Force v. Rose (1976) 425 U.S. 352)
• Statutory, government-controlled corporations (such as the U.S. Postal Service and Amtrak)(Church of Scientology of California v. U.S. Postal Service (9th Cir. 1980) 633 F.2d 1326; Ehm v. National R.R. Passenger Corp. (5th Cir. 1984) 732 F.2d 1250). 
• Subunits of an agency, such as the Federal Bureau of Investigation within the Department of Justice (Ramer v. Saxbe  (D.C. Cir. 1975) 522 F. 2d 695).

The FOIA does not apply to individuals, private companies, private entities with federal contracts, or courts. 5 U.S.C. §551(1). Case decisions have held that federal courts are not "agencies" subject to FOIA. U.S. v. Miramontez (5th Cir. 1993) 995 F.2d 56; Warth v. Dept. of Justice (9th Cir. 1979) 595 F.2d 521.

For purposes of the Freedom of Information Act, only "agency records" must be produced. 5 U.S.C. §552(a)(3)(A). The term "agency record" means 1) records that the federal agency created or obtained, and 2) records that are under control of the federal agency at the time of receipt of the FOIA request. Fox News Network, LLC v. Board of Governors of the Federal Reserve System (2nd Cir. 2010) 601 F.3d 158. Courts look at four factors to determine if an agency controls a record: 

• intent of the document creator to retain or relinquish control over the record
• ability of the agency to use and dispose of the record
• extent to which agency personnel have read and relied on the record
• degree to which the record was integrated into the agency's files

Judicial Watch, Inc. v. Federal Housing Finance Agency (D.C. Cir. 2011) 646 F.3d 924.

In the case of a dispute over whether records are "agency records," the agency has the burden of proving that the materials sought are not agency records. U.S. Dept. of Justice v. Tax Analysts (1989) 492 U.S. 136.

The intent of the FOIA is to strongly favor openness and full disclosure of records unless the records are protected by one of nine exemptions set out in the Act. 5 U.S.C. §​552(b). Those exemptions are:

1. Classified as secret in the interest of national defense. 5 U.S.C. §552(b)(1).
2.  Internal personnel rules and practices. 5 U.S.C. §552(b)(2).
3. Statutory exemptions. 5 U.S.C. §552(b)(3).
4. Trade secrets and confidential financial information. 5 U.S.C. §552(b)(4).
5. Inter-agency or intra-agency memoranda.  5 U.S.C. §552(b)(5).
6. Personnel and medical files and other privacy information.  5 U.S.C. §552(b)(6).
7. Law enforcement investigatory records  5 U.S.C. §552(b)(7).
8. Regulation/supervision of financial institutions.  5 U.S.C. §552(b)(8).
9. Geological/geophysical information, including maps. 5 U.S.C. §552(b)(9).

For more detailed information about each of the nine exemptions and how they are applied, see the Department of Justice Guide to the FOIA.

An agency seeking to withhold records under an exemption has the burden of showing that the requested information falls within the exemption. 5 U.S.C. §​552(a)(4)(b). Additionally, any reasonably segregable portion of a record must be provided after deletion or redaction of any portion that is exempt. 5 U.S.C. §552(b). 

Who can make a request? Any person can make a FOIA request, whether they are a U.S. citizen or not. O'Rourke v  U.S. Dept. of Justice (DDC 1988) 684 F. Supp. 716. A "person" includes individuals, groups, corporations, organizations and government bodies. 5 U.S.C. §551(2). The person making the request is not required to state the motivation behind the request or the reason the information is being requested. Yonemoto v. Dept. of Veterans Affairs (9th Cir. 2012) 686 F.3d. 681.

Is a request necessary? Because FOIA requires agencies to proactively publish and make available certain information, the requesting party should perform research to determine if the information is readily available online before making a request. The website FOIA.gov is a good place to begin that research.

Format of request. A request must:

1. Be made in accordance with the agency's published rules, and directed to the addressee specified in those rules. 5 U.S.C. §552(a)(3)

2. "Reasonably describe" identifiable, nonexempt records. 5 U.S.C. §552(a)(3)(A)(i). The description of records must be sufficient to allow government employees who are familiar with the subject area of the request to locate the requested material. Sears v. Gottschalk (4th Cir. 1974) 502 F.2d 122. The request should also be focused enough that the government employees can locate the material using a reasonable amount of effort, and without unduly burdening or disrupting the agency's operations. Marks v. U.S. (9th Cir. 1978) 578 F.2d 261. Broad requests for "all" of a certain type of record do not satisfy the specificity requirement of the FOIA. Sears v. Gottschalk (4th Cir. 1974) 502 F.2d 122. 

4. Describe existing records. An agency is not required to create new records in response to a FOIA request. A.C.L.U. v. Dept. of Justice (2d Cir. 2012) 681 F.3d 61.

Fees. Each federal agency has a fee schedule for processing FOIA requests, which can be found by searching for the agency on FOIA.gov. Fees that can be charged for processing FOIA requests are limited to the direct costs of search, duplication and review. 5 U.S.C. §552(a)(4)(A)(iv). News media can only be charged the costs of duplication, and a fee waiver can be requested if disclosure of the information is in the public interest and promotes public understanding of government operations. 5 U.S.C. §552(a)(4)(A)(ii)(II); 5 U.S.C. §552(a)(4)(A)(iii). Indigency alone is not a proper ground for granting a fee waiver. Ely v. U.S. Postal Service (D.C. Cir. 1985) 753 F.2d 163.

Sample FOIA Request Letters. For some sample FOIA request letters see the Resources page of this guide. 

Once an agency has received a proper FOIA request (i.e., one that complies with that agency's published rules and describes identifiable, existing records) that agency has 20 business days to respond to the request. 5 U.S.C. §552(a)(6)(A)(1). These are the possible responses:

• The agency intends to comply with the request;
• the agency is denying the request, along with their reason for doing so;
• a request for an extension of not more than 10 working days due to “unusual circumstances"
• or, some combination of these responses.
• The response must also advise the requesting party of their appeal rights. 

The response must also advise the requesting party of their appeal rights.

For more about what constitutes "unusual circumstances" that allow an agency to request an extension of time, see 5 U.S.C. §552(a)(6)(B)(iii).

To find out more about how long a particular agency typically takes to respond to a FOIA request, look for a recent FOIA Annual Report on the agency's website.

A requesting party who is unsatisfied with the agency's response to a FOIA request has several options for resolving the dispute. 

1. Informal resolution. You can seek an informal resolution of the issues related to your request, and offer to narrow or clarify the request if that would assist with the agency's response. Be sure to keep records of your correspondence with the agency.

2. Administrative appeal. If the agency denies your request, or does not respond, you can appeal to the agency's FOIA Appeals Officer. Search the agency's website for information about how to file a FOIA appeal (see for example this FOIA webpage from the Department of Justice). The denial letter you received should also describe the agency's appeal process. Take note of any time limits, which are usually 30 days. Sample appeal letters can be found at the Reporters Committee for Freedom of the Press' website.  There is no fee for filing an administrative appeal.

3. Request for Assistance from Office of Government Information Services. The Office of Government Information Services (OGIS) was set up to be a neutral third party to assist with resolving disputes between government agencies and parties requesting records. For information about how to seek assistance from this OGIS, see this page on its website.

4. Filing a Lawsuit. If your request is denied and your administrative appeal is unsuccessful, you can sue the agency in the United States District Court in your state, in the state where the records are located, or in the District of Columbia. 5 U.S.C. §552(a)(4)(B). Keep in mind that filing a lawsuit rquires a commitment of time and resources, and that an attorney will charge you a fee up front for representing you in this type of case. If you win your case you may be able to recover your attorneys fees from the agency. Before filing a suit you are required to "exhaust administrative remedies," meaning that you have already filed an administrative appeal that has been denied. For more information about filing a FOIA lawsuit see the Resources page.