Utilizing the Freedom of Information Act
The Freedom of Information Act
The U.S. Freedom of Information Act (FOIA) is a law ensuring public access to U.S. government records. FOIA carries a presumption of disclosure; the burden is on the government - not the public - to substantiate why information may not be released. Upon written request, agencies of the United States government are required to disclose those records, unless they can be lawfully withheld from disclosure under one of nine specific exemptions in the FOIA. This right of access is ultimately enforceable in federal court.
Steps in the FOIA Process
- Write a FOIA request
- Fax, mail, or email your request to the agency.
- Wait for an acknowledgment – usually 1-4 weeks
- Agency may ask for clarification regarding your request and fee status.
- The agency will either: a) release documents in full, b) release documents in part, c) withhold documents in full, or d) not find any responsive documents. Response could take anywhere from 1 week to 10+ years depending on agency workload and the complexity of the request.
- If you disagree with the agency’s response and/or list of exemptions from supplying certain documents, you have 30-90 days to file an appeal to their decision.
- The agency will notify you of their acceptance of your appeal and send more information or deny your appeal and continue to withhold information.
- If you disagree with the appeal decision you may seek judicial review in court.
12 Keys to Submitting a FOIA request
- 1.) A FOIA request should by its nature be a last resort that you call upon when you believe that the agency is withholding important information which will impact a project or proposal.
- 2.) Be certain that all research has been done before filing a FOIA request. You cannot ask an agency to do your research for you. Only if you are fairly certain that a government agency will have documents should you send a FOIA request.
- 3.) Be specific when writing your FOIA request. Overly broad requests are a waste of time and are not likely to result in a timely response. Assume the FOIA officer is not familiar with your topic and assist the person in doing the search by providing key items of information.
- 4.) Keep your request brief, avoiding narratives, as they likely will confuse the FOIA officer. Be concise and to the point to ensure the quickest response to your request.
- 5.) Spend the time researching the topic in order to target your request on the correct agency and specific topics. Find the correct address to send your request to in order to avoid it being submitted to the wrong agency or office. This can delay the fulfillment of your request by weeks or months.
- 6.) Establish and maintain contact with the FOIA office of the agency and monitor their FOIA website often to check on the status of your request. Agency response letters often identify a point-of-contact or case officer for your FOIA request.
7.) Don't harass your FOIA officer with too many calls or letters. Yours is not the only case the agency has received and it is likely that the officer is very busy fulfilling requests from many interested parties at once.
- 8.) Make note all substantive telephone contacts in addition to the agency correspondence you receive. Having a complete record of all interactions regarding your requests could prove important during a potential appeal or judicial review phase.
- 9.) Be sure to fully understand the statutes guiding the agency prior to submitting the FOIA request. Carefully follow the agency's own FOIA regulations and instructions in correspondence.
- 10.) You cannot appeal an agency's lack of initial response until the agency has had 20 business days to respond. Also, agencies may, at their discretion, accept your appeal for a denial of documents beyond their appeal period. Finally, the agency has 20 business days to decide your appeal before you may file a complaint in federal court.
- 11.) Expect delays in the processing of FOIA requests. Delays in processing FOIA requests occur at many agencies, and are endemic at a handful of agencies. Most agency delays are short, perhaps only a week or two. Delays are exacerbated by the fact that for most agencies FOIA is not an agency priority and will suffer delays due to a lack of commitment or budgetary constraints.
- 12.) Be reasonable when submitting your request and try to make the job of the FOIA officer as easy as possible to ensure a prompt response. Concise, clear, and simple requests are generally completed more quickly than others and are seen by the FOIA officer as the type of request they would like to spend their time on. If you expect to be submitting requests on occasion, make the officer a friend, not a foe.
Sample FOIA Request Letter
Agency Head [or Freedom of Information Act Officer]
Name of Agency
Address of Agency
City, State, Zip Code
Re: Freedom of Information Act Request
Dear [The Name of the FOIA Officer as listed on the agency's Web site]:
This is a request under the Freedom of Information Act 5 U.S.C. § 552. I request that a copy of the following documents [or documents containing the following information] be provided to me. [Proceed to list requested documents]
In order to help to determine my status to assess fees, you should know I am [describe the requester and the purpose of the request.]
[For example, In order to help to determine my status to assess fees, you should know I am]
-a representative of the news media affiliated with the ____ (newspaper, magazine, describe publication contract or describe past publication history), and this request is made as part of a news gathering and not for commercial use.
-affiliated with _____, an educational or noncommercial scientific institution, and this request is made for a scholarly or scientific purpose and not for commercial use.
-an individual seeking information for personal use and not for commercial use.
-affiliated with a private corporation and am seeking information for use in the company's business.
I am willing to pay fees for this request up to a maximum of $____. If you estimate that the fees will exceed this limit, please inform me first.
I request a waiver [if warranted] of all fees for this request. Disclosure of the requested information to me 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 my commercial interest. [Include a specific explanation.]
If you deny any part of this request, please cite each specific reason that you think justifies your refusal to release the information and notify me of appeal procedures available to me under the law.
If you have any questions processing this request, you may contact me at the following telephone number or e-mail address: [number and address]. Thank you for your consideration of my request.
City, State, Zip Code
Telephone Number [Optional]
Sample FOIA Appeal Letter
Agency Head or Appeal Officer
Name of Agency
Address of Agency
City, State, Zip Code
Re: Freedom of Information Act Appeal
Dear [The Name of the FOIA Appeal Contact as listed on the agency's Web site]
This is an appeal under the Freedom of Information Act 5 U.S.C. § 552.. On [date], I requested documents under the Freedom of Information Act. My request was assigned the following identification number:________. On [date], I received a response to my request in a letter signed by [name of official]. I appeal the denial of my request.
[Optional] The documents that were withheld must be disclosed under the FOIA because....
[Optional] I appeal the decision to deny my request for a waiver of fees. I believe that I am entitled to a waiver of fees. Disclosure of the documents I requested is in the public interest because the information is likely to contribute significantly to public understanding of the operations or activities of government and is not primarily in my commercial interest. [Provide details]
[Optional] I appeal the decision to require me to pay review costs for this request. I am not seeking the documents for commercial use. [Provide details]
[Optional] I appeal the decision to require me to pay search charges for this request. I am a reporter seeking information as part of a news gathering and not for commercial use.
If you have any questions processing this request, you may contact me at the following telephone number or e-mail address: [number and address]. Thank you for your consideration of this appeal.
City, State, Zip Code
Telephone Number [Optional]
Agency FOIA Contact Information
Certain information is exempted from FOIA requests and an agency is able to interpret these exemptions as they see fit. While some exemptions are clear and understandable, others are increasingly sited as a rationale to withhold information related to projects or plans which may not be covered by these exemptions after a careful and reasonable analysis.
Areas of exemption cited by federal agencies and protected under law:
- National Security Information
- Internal Personnel Rules and Practices; High-Substantial internal matters, disclosure would risk circumvention of a legal requirement, and Low-Internal matters that are essentially trivial in nature.
- Information exempt under other laws
- Confidential Business Information
- Inter or intra agency communication that is subject to deliberative process, litigation, and other privileges
- Personal Privacy
- Law Enforcement Records that implicate one of 6 enumerated concerns
- Financial Institutions
- Geological Information
Costs of a FOIA request
Agencies are authorized to charge certain fees associated with the processing of requests. Some categories of requesters cannot be charged these fees and in some cases fees can be reduced or waived.
Under the FOIA, solely for fee purposes, an agency is required to determine the projected use of the records sought by the FOIA request and the type of requester asking for the documents. As the FOIA was intended to promote the public's access to information, news media organizations and educational institutions are excused from certain fees.
Fee Categories for FOIA
- Commercial - Companies that or people who seek information for a use or purpose that furthers commercial, trade, or profit interests, including for use in litigation. Commercial requesters are required to pay for search, review and duplication costs.
- Educational Institution - Preschools, public or private elementary or secondary schools, and institutions of graduate higher education, undergraduate higher education, professional education, or vocational education that operate a program(s) of scholarly research. Educational requesters are required to pay duplication costs, but are entitled to the first 100 pages without charge.
- Non-Commercial Scientific Institution - Non-commercially operated institutions that conduct scientific research not intended to promote any particular product or industry. Non-commercial requesters are required to pay duplication costs, but are entitled to the first 100 pages without charge.
- Representative of the News Media - People who actively gather news for entities organized and operated to publish or broadcast news to the public. News Media requesters are required to pay for duplication, but are entitled to the first 100 pages without charge.
- Other Requesters - Requesters who do not fit into any of the above categories. These requesters are persons who are not commercial, news media, scientific or educational requesters and are required to pay search costs for more than 2 hours and duplication costs for more than 100 pages.
To demonstrate that you belong in an educational, news media or non-commercial fee category, provide information about the intended professional scholarly or journalistic uses of the information you receive. List any relevant previous or pending publications, including books, articles, dissertations, publication contracts or letters of intent or interest, or similar information that shows your ability to disseminate the information you receive from the agency. State that the materials are not requested solely for a private, profit-making commercial purpose. You should request that, to the extent any fees are assessable, the agency notify you if those fees will exceed an amount you specify.
Actual search, review and duplication fees vary by agency. Search/Review fees can be anywhere $8.00 to $45.00 per hour and duplication fees can be from $.10 to $.35 per page. Agencies cannot require a requester to make an advance payment unless the agency estimates that the fee is likely to exceed $250 or the requester previously failed to pay proper fees.
Under the FOIA it is possible to have all fees, including copying, waived by the agency if the material requested "is likely to contribute significantly to public understanding of the operations or activities of government and is not primarily in the commercial interest of the requester." If your request fits this statutory criterion, you should make your case for a fee waiver in your request letter as strongly as possible. Be sure to describe the scholarly, historical, or current public interest in the material requested, identify specific operations or activities of government to which the request relates, why the information will contribute to an understanding of those activities and operations, why the public in general would be interested, and identify specific operations or activities of government to which the request relates, why the information will contribute to an understanding of those activities and operations, and why the public in general would be interested.