Entities Subject to FOIA

Provided by The Reporters Committee for Freedom of the Press
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Introduction

FOIA applies to most "agencies" within the executive branch of the federal government. It does not apply to Congress, the courts, or state or local entities.

In analyzing whether a body or organization comes under the definition of agency subject to FIOA, a court considers various factors:

  • whether the structure and operation of an entity is subject to considerable federal control;
  • whether the authority performs a governmental or decision making function;
  • whether the authority controls public interested information.[1]

Statutory definition

The Administrative Procedure Act (APA) defines "agency" to mean “each authority of the government of the United States, whether or not it is within or subject to review by another agency,” with certain exceptions, specifically including the courts and Congress.[2]

"Agency", as defined in 5 U.S.C. 552(f)(1), cross-references the definition in the APA, and additionally includes

"any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency;"

The Privacy Act incorporates the FOIA definition of agency.

The Executive Office of the President

FOIA's definition of agency includes "the Executive Office of the President."[3] However, in Kissinger v. Reporters Committee for Freedom of the Press, the Supreme Court held that "'Executive Office' does not include the Office of the President[,]" and furthermore that “'the President's immediate personal staff or units in the Executive Office whose sole function is to advise and assist the President' are not included within the term 'agency' under the FOIA."[4] Accordingly, entities such as the National Security Council[5] and the Council of Economic Advisors[6] have been found to not constitute agencies covered by FOIA.

Entities Held To Be Agencies Subject to FOIA

  • The Defense Nuclear Safety Board[7]
  • The Government Printing Office[8]
  • The Council on Environmental Quality[9]
  • The Cost Accounting Standards Board [10]
  • The Office of the Pardon Attorney[11]
  • The United States Parole Commission[12]
  • The United States Board of Parole[13]
  • The Watergate Special Prosecution Force[14]
  • The FBI[15]
  • The Federal Home Loan Mortgage Corporation[16]
  • Amtrak[17]

Entities Held Not To Be Agencies Subject to FOIA

  • The Vice President and their staff[18]
  • The National Security Council[5]
  • Office of Counsel to the President[19]
  • The Presidential Task Force on Regulatory Relief[20]
  • The President's immediate personal staff or any units in the Executive Office [of the President] whose sole function is to advise and assist the President[21]
  • Federal medical peer review panels[22]
  • The Council of Economic Advisers[6]
  • The National Academy of Sciences[23]
  • The Defense Advisory Committee on Women in the Service[24]
  • The Red Cross[25]
  • The Trust Territory of the Pacific Islands[26]
  • Conrail[27]
  • Teview groups who make preliminary recommendations on research grant applications submitted to NIMH[28]
  • An FDA drug review panel[29]
  • The University Group Diabetes Program[30]

Entities receiving federal funding

Note that not all entities receiving federal funding are subject to FOIA - see above in relation to the American Red Cross — which receives federal funds but is neither chartered nor controlled by the federal government.

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.[31]

Contractors

→Help wanted! Contribute to the FOIA Wiki by adding information in this section. Be sure to read the FOIA Wiki Policies before getting started, and remove this tag when you're done.

Recent district court cases on entities subject to FOIA

Recent district court cases regarding this topic from TRAC's FOIA Project. Visit their issue search page for more options.

See Also

https://www.rcfp.org/federal-open-government-guide/federal-freedom-information-act/which-agencies-are-covered

External Links

References

  1. ↑ https://freedomofinformationacts.uslegal.com/agencies-subject-to-foia/
  2. ↑ 5 U.S.C. § 551(1) (1994).
  3. ↑ 5 U.S.C. § 552(f)(1)
  4. ↑ Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156, 100 S. Ct. 960, 971 (1980)
  5. ↑ 5.0 5.1 Armstrong v. Exec. Office of the President, 90 F.3d 553, 559-65 (D.C. Cir. 1996), cert. denied, 117 S. Ct. 1842 (1997)
  6. ↑ 6.0 6.1 Rushforth v. Council of Econ. Advisers, 762 F.2d 1038 (D.C. Cir. 1985)
  7. ↑ Energy Research Found. v. Def. Nuclear Safety Bd., 917 F.2d 581, 584-85 (D.C. Cir. 1990)
  8. ↑ Cong. Info. Serv. v. Gov’t Printing Office, No. 86-3408 (D.D.C. Apr. 7, 1987)
  9. ↑ Pac. Legal Found. v. Council on Envtl. Quality, 636 F.2d 1259 (D.C. Cir. 1980)
  10. ↑ Petkas v. Staats, 501 F.2d 887 (D.C. Cir. 1974)
  11. ↑ Crooker v. Office of Pardon Attorney, 614 F.2d 825 (2d Cir. 1980)
  12. ↑ Carson v. United States Dep’t of Justice, No. 79-0140 (D.D.C. July 29, 1979), aff’d in part, rev’d in part, 631 F.2d 1008 (D.C. Cir. 1980)
  13. ↑ Hrynko v. Crawford, 402 F. Supp. 1083 (E.D. Pa. 1975)
  14. ↑ Niemeier v. Watergate Special Prosecution Force, 565 F.2d 967 (7th Cir. 1977)
  15. ↑ Hamlin v. Kelley, 433 F. Supp. 180 (N.D. Ill. 1977)
  16. ↑ Rocap v. Indiek, 539 F.2d 174 (D.C. Cir. 1976)
  17. ↑ Aug v. National R.R. Passenger Corp., 425 F. Supp. 949 (D.D.C. 1974)
  18. ↑ Judicial Watch, Inc. v. Nat'l Energy Policy Dev. Grp., 219 F. Supp. 2d 20, 55 (D.D.C. 2002)
  19. ↑ Nat’l Sec. Archive v. Executive Office of the President, 688 F. Supp. 29, 31 (D.D.C. 1988), aff’d sub nom. Nat’l Sec. Archives v. Archivist of the U.S., 909 F.2d 541 (D.C. Cir. 1990)
  20. ↑ Meyer v. Bush, 981 F.2d 1288, 1294 (D.C. Cir. 1993)
  21. ↑ Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 156 (1980) (quoting H.R. Rep. No. 93-1380, at 15 (1974) (Conf. Rep.)).
  22. ↑ Public Citizen Health Research Group v. HEW, 668 F.2d 537, 543-44 (D.C. Cir. 1981)
  23. ↑ Lombardo v. Handler, 397 F. Supp. 792 (D.D.C. 1975), aff’d, 546 F.2d 1043 (D.C. Cir. 1976), cert. denied, 431 U.S. 932 (1977)
  24. ↑ Gates v. Schlesinger, 366 F. Supp. 797 (D.D.C. 1973)
  25. ↑ Irwin Blood Bank Mem’l v. Am. Nat’l Red Cross, 640 F.2d 1051 (9th Cir. 1981)
  26. ↑ Gale v. Andrus, 643 F.2d 826 (D.C. Cir. 1980)
  27. ↑ Railway Labor Executives’ Ass’n v. Consolidated Rail Corp., 580 F. Supp. 778 (D.D.C. 1984)
  28. ↑ Washington Research Project, Inc. v. Dep’t of HEW, 504 F.2d 238 (D.C. Cir. 1974), cert. denied, 421 U.S. 963 (1975)
  29. ↑ Wolfe v. Weinberger, 403 F. Supp. 238 (D.D.C. 1975)
  30. ↑ Ciba-Geigy Corp. v. Mathews, 428 F. Supp. 523 (S.D.N.Y. 1977)
  31. ↑ Requests for Smithsonian Records, https://www.si.edu/ogc/records-requests
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