Making a FOIA Request

Introduction
You may try to make an informal telephone request to an agency to obtain documents. However, agencies frequently require that requests be made in writing. In fact, you establish your legal rights under FOIA only by filing a written request. Once you have filed a FOIA request, the burden is on the government to release the documents promptly or to show that they are covered by one of the FOIA exemptions.

At all agencies, the request is received by the office designated to receive FOIA requests, and then processed in a FOIA Service Center overseen by a Chief FOIA Officer and FOIA Public Liaison. Under amendments to the law in 2007, the request is to be assigned a tracking number, which allows requesters to later check the status of their requests online or over the phone and provides them with an estimated date by which action on the request will be completed.

The agency must respond to your written FOIA request within 20 working days; however, as a practical matter, agencies frequently disregard that deadline without penalty.

The amendments offer the agencies a potential “out” in meeting that deadline by allowing them one clarification request that stops the clock, either for fee assessment purposes or for additional information about the request.

A “response” to a request is a grant or denial of the records sought. A simple acknowledgment by an agency that it has received your request does not count as the response to which you are entitled under FOIA.

Should an agency fail to issue a response within the statutory 20-day deadline, it may also be allowed additional time without violating the law if there are “unusual or exceptional circumstances” associated with the request. A routine backlog of requests at the agency would not qualify as an unusual or exceptional circumstance. Despite this requirement, few FOIA requests are fulfilled in 20 days.

If you have an urgent need for the information, you should ask for “expedited processing.” You are entitled to expedited processing if you can show “compelling need” to the agency. This is most often granted if health and safety are at issue or if you are a person primarily engaged in disseminating information and there is an urgency to inform the public about an actual or alleged governmental activity. Agencies may also decide that they will grant expedited processing for other categories of records. For instance, the Justice Department grants expedited processing for requests concerning issues of government integrity that have already become the subject of widespread national media interest. That agency also grants expedited processing if delay might cause the loss of substantial due process rights.

An agency may charge you the reasonable costs of providing the documents, unless you are entitled to reduced fees or fee waivers. For instance, agencies cannot charge representatives of the news media for costs of searching for records. To minimize delay, the 2007 amendments provided agencies with a disincentive to dally — if an agency fails to comply with any time limit of the law, it may not charge the requester search fees for that request, even if the requester is a commercial entity. For requesters not required to pay search fees, such as the news media, the amendments forbid the agency from charging any duplication fees, no matter the volume of the request.

If an agency refuses to disclose all or part of the information, or does not respond within 20 working days to a written FOIA request, you may appeal to the agency’s FOIA Appeals Officer. You may avoid the agency appeal and go directly to court only if the agency does not respond within the required time period. An appropriate agency response is a grant or denial of the requested information. The agency may also appropriately respond that it is extending its time limit for granting or denying the information by up to 10 additional working days if voluminous records must be searched, if records must be retrieved from various offices or if several agencies must be consulted. If you file an administrative appeal that is denied or not responded to within 20 working days, you can then file a lawsuit in a federal court convenient to you. If you can demonstrate the need for prompt consideration, you may ask that the court expedite your case. If you win in court, a judge will order the agency to release the records and may award you attorney’s fees and court costs.

Which agencies are covered?
FOIA applies to every “agency,” “department,” “regulatory commission,” “government controlled corporation,” and “other establishment” in the executive branch of the federal government. This includes cabinet offices, such as the departments of Defense, State, Treasury, Interior, and Justice (including the Federal Bureau of Investigation and the Bureau of Prisons); independent regulatory agencies and commissions, such as the Federal Trade Commission, Federal Communications Commission and the Consumer Product Safety Commission; “government controlled corporations” such as the U.S. Postal Service and Amtrak; and presidential commissions. FOIA also applies to the Executive Office of the President and the Office of Management and Budget, but not to the President, his immediate staff, the Office of the Vice President or the Office of Administration, which advises the president.

Not all entities that receive federal funds are covered by FOIA. For example, entities such as the Corporation for Public Broadcasting and the American Red Cross — both of which receive federal funds but are neither chartered nor controlled by the federal government — are not covered.

The Supreme Court also has ruled that a private organization that is established for the sole purpose of carrying out government research contracts and is totally funded by the federal government is not automatically an “agency” subject to FOIA.5 However, some entities that receive federal funds but are not subject to FOIA, such as the Smithsonian Institution, voluntarily adopt disclosure policies very similar to FOIA. While asserting its need to protect certain financial and donor data through exemptions that are broader than the Act’s, the Smithsonian has adopted the presumption of disclosure present in FOIA and many other provisions in the law.

FOIA does not apply to Congress, the federal courts, private corporations or federally funded state agencies. Because the military court system was created through Department of Defense regulations and not by the U.S. Constitution, military branches often argue FOIA applies to military court records including court dockets, which can render access to those records very difficult given the delays that accompany most FOIA requests. Court documents are public because of a First Amendment-based right of access — which also applies to military courts documents. While the Federal Reserve Board of Governors in Washington, D.C., is covered by FOIA, the 12 regional banks of the Federal Reserve are not considered government agencies and FOIA does not apply to them. Records held by the regional banks — like many of those recently sought in connection with the government’s private-sector financial bailout packages — are not subject to FOIA unless also filed with Washington’s Federal Reserve Board.

Similarly, documents generated by these groups, other branches of the federal government and the states that are filed with executive branch agencies of the federal government become subject to disclosure under FOIA, just as if they were documents created by the agencies. Congressional agencies such as the Library of Congress and the General Accounting Office follow their own records disclosure rules and procedures patterned after FOIA.

The federal FOIA also does not apply to state or local governments. All states have their own “open records” lawsthat provide access to state and local records. Information on how to use these state laws is available from The Reporters Committee for Freedom of the Press through its “Open Government Guide” — a compendium of open records and meetings laws for each state and the District of Columbia. The compendium is available as a one-volume book, as a CD-ROM or online at www. rcfp.org/ogg. Separate booklets on the open government laws of each state are also available.

Asking for records
FOIA is very broad. It covers all “records” in the possession or control of a federal agency. Under the 2007 amendments, this also includes records maintained by entities outside government under a government contract. The term “records” is defined expansively to include all types of documentary information, such as papers, reports, letters, e-mail, films, computer tapes, photographs and sound recordings in any format, including electronic. But physical objects that cannot be reproduced, such as water quality samples kept by the Environmental Protection Agency, are generally not considered “records” under the Act. If in doubt as to whether the material you want is a

Do you actually have to file a request?
Most people think of FOIA in terms of requesters: people writing to agencies in search of information. But the Act goes further to make information public. It requires the agencies to make documents available on their Web sites and in physical “reading rooms.” FOIA requires agencies to publish in the Federal Register any regulations or general policy statements. For instance, each agency must publish its regulations telling the public what rules it will follow in processing FOIA requests. Final regulations are published in the Code of Federal Regulations available at law libraries. The Government Printing Office Electronic Information Enhancement Act of 1993 requires GPO to make these materials available online as well.