FOIA Basics

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The Freedom of Information Act (FOIA), is a United States law that generally gives any person or organization (including non-US citizens) the right to access records of federal executive branch agencies upon request, unless they fall within any of nine outlined exemptions and satisfy the Foreseeable Harm Standard. Generally, the purpose of FOIA is to promote access to information about the federal government and to ensure the public has information to participate in democratic governance.

Enacted on July 4, 1966 and effective one year later, FOIA is codified in the United States Code in Title 5, Section 552 (5 U.S.C. § 552).[1] Agencies also have their own regulations for implementing various procedural aspects of FOIA, such as how to submit requests.

Who does FOIA apply to?

FOIA applies to agencies within the executive branch of the federal government. That includes most entities in the executive branch, for example, the Department of Justice, the Environmental Protection Agency, and the Federal Trade Commission. Sometimes larger departments have components that are themselves agencies, which independently accept and process FOIA requests. The Federal Bureau of Investigation, for example, is within the Department of Justice but has an independent FOIA process.

While FOIA applies to many entities within the Executive Office of the President (such as the Office of Management and Budget), it does not apply to the President or their immediate personal staff, or the Vice President.

FOIA does not apply to Congress, the federal courts, private corporations, or federally funded state agencies.

The federal FOIA also does not apply to state or local governments. All states and the District of Columbia have their own “open records” laws that provide access to records of state and local agencies.

Do you need to make a request?

Before filing a FOIA request, consider researching whether the records/information being sought are already available online. Most agencies maintain electronic "reading rooms" of documents that have been previously requested and released, or that the agency is required to proactively make available. The FBI and CIA, for example, maintain fairly large, searchable caches of documents.

The United States government also makes many structured datasets available though

How to make a request

FOIA requests must satisfy three requirements:

  1. The request be made in writing,
  2. The request must reasonably describe the records being sought, and
  3. The request must follow the agency's FOIA regulations.

A basic template for FOIA requests is available on the Making a FOIA Request page.

Address your request letter to the FOIA officer at the appropriate agency or subdivision. You can find out how agencies accept requests and where to send them by visiting the agency's website or by finding their information on the FOIA Wiki's Agencies Landing Page. The federal FOIA Portal also has address information for all federal agencies, and you can send FOIA requests to many agencies directly through the portal.

Some basic tips:

  • It's generally a good idea to be as specific as possible when describing the records being sought.
    • See the page on Making a FOIA Request for more detail on the amount of specificity required.
    • Agencies may reject requests for "all records related to" a subject as insufficiently specific.
  • If you are making a request for records about yourself or other living individuals, agencies may afford greater access if you can provide a privacy waiver.
  • If you are making a request for records about a deceased individual, agencies may afford greater access if you submit proof of death along with your request.
  • Be sure to include your contact information with the request so the agency knows how to contact you. It is a good idea to provide both an email address and a mailing address.
  • Assistance with writing and submitting requests is available through several online FOIA tools, including Muckrock, and FOIA Machine. The federal government also maintains a FOIA portal that allows the submission of requests to many federal agencies and contact information for all agencies.
  • If you mail your request, mark the outside of the envelope “FOIA Request.” Similarly, if you email it be sure that the subject line includes the words "FOIA Request".
  • You should keep a copy of your request and note how it was sent. These will be important for following up on the request if the agency does not provide access to the records.
  • Depending on the circumstances, you may be required to pay various types of fees in connection with your request, unless your are entitled to reduced fees or a fee waiver. See the pages on Fees and Fee Categories and Fee Waivers for more details.

Once you have filed a FOIA request, the burden is on the government to release the documents or to show that they are covered by one of the FOIA exemptions.

What happens after a request is submitted?

Following submission of a FOIA request, the agency will first provide an acknowledgement letter with a tracking number to the requestor for use future correspondence between the requester and the agency.

The agency will then conduct a search for responsive records and process them to determine whether (from the agency's perspective) the records or portions thereof are exempt under one or more of FOIA's nine exemptions. The agency should also conduct a Foreseeable Harm analysis. The agency will then provide the requester with a determination letter setting forth whether it is releasing all, some, or no records, and the basis for withholding records.

Timing of the agency's response

Normal Requests

Agencies must generally make a determination with respect to an ordinary FOIA request within 20 working days. As a practical matter, agencies generally take much longer than 20 business days to respond to a request. Large requests frequently take months or years to process.

Agencies may extend the normal 20-working day deadline if "unusual circumstances" apply, such as the need to collect a "voluminous" amount of records or the need to consult with another agency.

Expedited Requests

A requester can ask for Expedited Processing of their request if certain conditions are met. An agency must make a determination as to whether to grant expedited processing within 10 calendar days.

For more information about FOIA's timing provisions, see the page on Determinations.

Requester options for agency delay/non-responsiveness

An agency is required, in most circumstances, to provide a determination with respect to a non-expedited request within 20 business days, and the responsive records must be made "promptly available" thereafter. Note that merely acknowledging receipt of a request and providing a tracking number does not qualify as a determination.

If an agency fails to meet its determination deadline, a requester has several options, some (but not all) of which are mutually exclusive:

  1. The requester can call the agency's FOIA office to request an estimated date of completion for the request. While such an estimate may be helpful, note that agencies are not bound by such estimates, and can (and frequently do) revise them. If you need to find the contact information for the agency, search for it in the search bar above or browse the agency information landing page.
  2. The requester can try and negotiate with the agency for a quicker response time, potentially by narrowing the scope of the request and/or modifying it such that it is placed in a faster processing queue.
  3. The requester can file an administrative appeal with the agency challenging its failure to abide by the statutory deadline. Note that some agencies, like the Department of Justice, do not generally consider administrative appeals challenging an agency's tardiness.
  4. The requester can seek the assistance of OGIS (Office of Government Information Services). OGIS can help a requester determine the status of their request when the agency is unresponsive, and also has mediation services.
  5. The requester can file a lawsuit to challenge the agency's failure to abide by FOIA's statutory deadlines.

Requester options for an agency's claim of exemption

If an agency claims that some or all records responsive to a request are exempt, the first option for the requestor to challenge the agency's claim(s) is through an Administrative Appeal. Requesters generally have 90 calendar days to file an administrative appeal following an adverse determination.

A requester can also seek assistance from OGIS, although it is generally a good idea to also file an administrative appeal to ensure the requester does not miss their deadline.

If the agency affirms a denial of records in response to an administrative appeal, the requester may challenge the denial in federal district court.

Other FOIA starter guides

  1. "U.S. Code, 5 U.S.C. § 552".