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FOIA

What is the Freedom of Information Act?

The Freedom of Information Act (FOIA) is a federal law that gives people the right to request information kept by federal government agencies.

The law also requires agencies to make certain information automatically available to the public in online "reading rooms." This includes regulations, general policy statements, staff instructions, final opinions, and other records that affect members of the public. Furthermore, the FOIA says that information that is or is likely to be frequently requested should be automatically published on the Internet. You can check an office's reading room, which should be accessible from the office's website, to see if the records you are seeking are available online. The U.S. Department of Justice maintains a list of links to federal offices' reading rooms.

You can read the text of the FOIA here.

Who can make requests under the FOIA?

Anyone.

Does the entire federal government have to turn over information under the FOIA?

No. The law applies only to federal agencies, departments, regulatory commissions, federal corporations and other executive branch offices, as well as private contractors maintaining records on behalf of these entities. The President, Congress, federal courts, and private companies are generally not subject to FOIA, though some White House offices are covered by the law. If you're still unsure whether a government office is covered by the FOIA, check the web site of that office. The U.S. Department of Justice maintains a list of links to covered offices, though it may not be comprehensive.

Does FOIA cover state and local governments?

State and local governments are not subject to the FOIA. However, all 50 states and Washington, D.C. have enacted open records laws similar to the FOIA. A comprehensive breakdown of state FOI laws is available in the Reporters Committee for Freedom of the Press Open Government Guide. For more information, visit the individual state or local government's web site.

What kind of information can I get through the FOIA?

The FOIA says that any agency records must be turned over to a requester unless they fall within one of several narrow categories of information that don't have to be disclosed.

These categories include:

  • classified information that would damage national security
  • internal information involving personnel rules and agency practices
  • material specifically shielded from disclosure by another law
  • confidential commercial or financial data, like trade secrets
  • records that would be privileged in litigation
  • information that would invade someone's privacy
  • law enforcement records
  • information related to government regulation of financial institutions
  • certain geological/geographical data

Can I get electronic records through the FOIA?

Yes. You can get many different types of records in response to a FOIA request, including documents, emails, photographs, and sound or visual recordings.

How do I know what to ask for?

News articles, government reports, press releases, and Congressional hearings are good starting points for thinking up FOIA request ideas.

For example, EFF successfully used FOIA to obtain records showing that U.S. Attorney General Alberto Gonzales had been aware of chronic problems with the FBI's use of National Security Letters (NSLs) to collect Americans' personal information before he testified that "[t]here has not been one verified case of civil liberties abuse" as a result of the Patriot Act. The records were the products of an EFF request for documents relating to a Justice Department report on the FBI's use of NSLs. When the FBI did not comply with the request, EFF sued under FOIA, prompting the judge to order the FBI to turn over the records.

How do I make a FOIA request?

You can make a FOIA request by mailing or faxing a letter to the agency. You may also be able to submit your request by email. Check the agency's web site for information about how
and where to send requests.

Your FOIA request should include:

  • Your name and contact information, including both your preferred method of contact and your preferred records medium (i.e., paper through standard mail, electronic files via email, electronic files via CD, etc.).
  • A description of the record(s) you are seeking. The only requirement is that you "reasonably describe" the records. Basically, this means that you must give enough information that a record-keeper would be able to find the records without an undue amount of searching.
  • The maximum records/reproduction fee you are willing to pay. You should indicate that you want to be contacted beforehand if the fees are going to exceed this amount.

Are there any step-by-step guides for writing and submitting FOIA requests?

Yes. Reporters Committee for Freedom of the Press has published a guide called How To Use the Federal FOI Act, and also has a FOI Letter Generator. The National Security Archive also has helpful guidance for FOIA requesters.

Can I ask for government records about myself under the FOIA?

Yes. You can also ask for this kind of information under the Privacy Act of 1974 if you are an American citizen or permanent legal resident.

How much does it cost to make a FOIA request?

It depends. The law allows agencies to charge fees to search for, review and duplicate records for commercial requesters. Other requesters may be required to pay some, but not all, of these fees. Requesters from media, educational, non-commercial or scientific entities have special fee status — they don't have to pay search or review fees, but may have to pay some duplication fees. However, a requester who can show that the disclosure she seeks is in the public interest may pay reduced or no duplication fees.

How long does it take to get information through the FOIA?

It depends on the agency and request. The FOIA generally requires that agencies grant or deny requests within 20 working days. Unfortunately, many agencies don't act on requests within the time required by the law, so it may take much longer to get the records. To get a sense of what an agency's response time might be, take a look at the annual FOIA report on its web site.

Congress recently made an effort to fix this problem by declaring that agencies won't be able to charge search or duplication fees when they fail to comply with the FOIA's time limits for no good reason. These penalties won't take effect until December 31, 2008, though, so it remains to be seen how they will affect processing times for FOIA requests.

To get a sense of what a particular agency's response time has been in recent years, take a look at the annual FOIA report on the agency's web site.

Is there any way I can get the information faster?

The FOIA does allow for "expedited processing," which means an agency must move your FOIA request to the head of the line and process it "as soon as practicable." A journalist or other person who is "primarily engaged in disseminating information" may ask for expedited processing when she can show that her request involves a matter of "compelling need." A requester can also ask for expedited processing when delayed disclosure of information threatens someone's life or physical safety.

Requesters should check the agency's regulations to see if it has any other basis for granting expedited processing. The Department of Justice, for example, also provides for expedited processing if a person will lose substantial due process rights if the records are not processed quickly, or when the request involves "a matter of widespread and exceptional media interest in which there exist possible questions about the government's integrity which affect public confidence."

I'm a blogger who is also a journalist. Do I get special treatment under the FOIA?

Yes. If you are a representative of the news media, you are entitled not to be charged fees for the agency's search or review of records. You may also qualify to have your request processed faster than it otherwise would be if you can show that there's an "urgency to inform the public" about the information you've requested.

What if I'm a blogger but I'm not sure if I qualify as a journalist for FOIA purposes?

The question of whether or when a blogger would qualify as a journalist for FOIA purposes based solely on his or her blog work has not yet been addressed. However, the FOIA makes it clear that alternative media and freelance journalists can qualify as representatives of the news media for fee purposes. If you plan to publish information on your blog based on the records you are seeking, you should note as much in your FOIA request and ask for a fee waiver/reduction. You may or may not succeed, but there's no harm in trying. If you are denied, you may file suit in federal court to challenge the denial.

After I've submitted my request, what if I don't hear anything from the agency?

If you don't get a response from the agency within 20 working days, you can treat it as though the agency denied your request, and you may either file an administrative appeal or seek judicial relief in court. If you file an administrative appeal and the agency doesn't respond to it within 20 working days, you again have the right to file suit.

What if the agency doesn't give me the information I asked for?

If the agency denies your request, you can appeal the decision. If your appeal is also denied, you have the right to file suit.

What if the agency denies my request for expedited processing or doesn't respond to it?

If the agency doesn't grant expedited processing, you have no obligation to appeal and may file suit immediately on the issue of your right to expedition.

If I file a lawsuit to force the agency to give me expedited processing and/or the records I requested, can I get attorneys fees?

If your lawsuit has merit and causes an agency to reverse the position it has taken on your request — even if a judge doesn't rule that the agency was wrong — you may be entitled to recover attorneys fees.

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