Making a FOIA Request
Introduction
Submitting a request is the first step in gaining access to agency records under FOIA.
There are several issues to consider when making a FOIA request, including procedural requirements set out by the statute and the agency, and the specificity of the request.
Identity of the Requester
A FOIA request may be made by “any person.”[1] This means that all U.S. citizens, as well as foreign nationals,[2] can use the Act to request information from government agencies. A request can also be made in the name of a corporation, partnership or other entity, such as a public interest group or news organization.
However, agencies that are part of the Intelligence Community are prohibited from providing records to: "(i) any government entity, other than a State, territory, commonwealth, or district of the United States, or any subdivision thereof; or (ii) a representative of a government entity described in clause (i)."[3]
Procedural requirements
FOIA states that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person."[4]
Contents of a request
Specifying the records
FOIA requires that requested records be “reasonably describe[d].”[5] As explained by the D.C. Circuit, a request meets this requirement if “the agency is able to determine precisely what records are being requested.”[6] In another opinion, the Court stated that FOIA's "reasonably describes" standard is met when it allows “a professional employee of the agency who [is] familiar with the subject area of the request to locate the record with a reasonable amount of effort.”[7]
A request must be written so that employees of the agency will be able to identify responsive records, not “questions disguised as a FOIA request”[8] or requests that appear to be “a general fishing expedition for answers to questions.”[9] “Broad, sweeping requests lacking specificity”[10] should also be avoided, because agencies are not required to fulfill them when they are not “able to determine precisely what records are being requested.”'[11]
It can sometimes be frustrating from a requester's perspective to provide specificity when they do not know how an agency's records are organized. That is especially true when it comes to electronic records. In a 2019 case from the D.C. Circuit, the court helpfully explained:
"We do not require technical precision in FOIA requests, and a request certainly should not fail where the agency knew or should have known what the requester was seeking all along. For example, a FOIA request for emails would not fail because the request was for emails 'in' an Outlook inbox rather than 'accessible through' Outlook. Nor do we require a requester to know anything about where or how the agency stores those emails. Instead, the statutory standard for a FOIA request is that it 'reasonably describes' the records sought. 5 U.S.C. § 552(a)(3)(A)."[12]
Examples of requests that reasonably describe records
- A request for all records "mentioning the deceased individual Rolihlahla Mandela (aka Nelson Mandela, aka Madiba, aka Tata)[]” was held to reasonably describe records by the D.D.C. in Shapiro v. Central Intelligence Agency.[13] As the Court explained, "the subject of Shapiro's request is the entirety of each document that mentions Mandela, even if such references are fleeting and tangential. So compliance should involve virtually no guesswork: A record is responsive if and only if it contains Mandela's name (or those of his three listed aliases) or any descriptor obviously referring to him."[14]
Examples of requests that do not reasonably describe records
- In a case where a requester sought “any and all documents, including but not limited to files, that refer or relate in any way to [the requester],” the court found the request to be too broad because the agency could not locate with reasonable effort the specific documents requested.[15]
- A “blanket request for all unpublished manuscript decisions” of the patent office was considered “sweeping and indiscriminate” where more than a million documents might have been responsive records.[16]
- A request for all documents about an individual requester is often considered too broad.[17]
- A request for all records that "pertain[ ] in whole or in part (all years, all classifications)” to a list of closed inspector general investigations was held to not reasonably describe records.[18] Because "a record may pertain to something without specifically mentioning it[,]" the request "leaves the agency to guess at the plaintiff's intent."[19]
Pre-processed records
Agencies have internal indexes to check if they have released records covered by a request before. These records have already been "pre-processed." If they have been released to several others, they should already be in the agency's online Reading Room. If not they can still be released more quickly than a new request. Therefore a new request can specify that it wants previously-released records first, or exclusively, or not at all, which may happen when a requester already has them and does not want to pay for duplicates.[20]
Format of Records
FOIA requires agencies to "provide the [requested] record in any form or format requested by the person if the record is readily reproducible by the agency in that form or format" and to also "make reasonable efforts to maintain its records in forms or formats that are reproducible" for such purposes.[21] Agencies must not only honor a requester's choice of format among existing formats, but must also make reasonable efforts to disclose the record in a format not in existence at the the time of the request (for example, in an electronic format) if the record is "readily reproducible in that new format.[22]
To obtain a record in a particular format the requester must ask for it in their initial request; courts have rejected efforts by requesters to force agencies to produce records in a particular format in litigation when they did not so specify in the original request.[23]
Requests for Fees and Fee Waivers
A requester may wish to include information identifying what fee category they fit into, and/or a request for a waiver of fees. For more information on these topics, see the entries on Fee Categories and Fee Waivers.
Expedited Processing
A requester may wish to ask for expedited processing of their FOIA request. For more information, see the entry on Expedited Processing.
Sample requests and templates
Examples of FOIA Requests
- Recent FOIA requests submitted through Muckrock can be accessed here.
- 5-17-18 FOIA Request from RCFP to the Office of Information Policy at the Department of Justice
Sample Request Template
» Requester address/contact information «
» Agency address/contact information «
» date «
RE: FREEDOM OF INFORMATION ACT REQUEST
Dear FOIA Officer:
This letter constitutes a request under the federal Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Pursuant to the FOIA I request access to and copies of » clearly describe the records sought. Include, if possible, details such as names, places, dates. Consider attaching or referencing news clips, reports and other documents describing the subject of your research. «
I would like to receive the information in » electronic, paper, original, etc. « format.
» provide information about the requester for purposes of fee categorization: representative of the news media, educational, non-commercial, commercial «
» optional: insert request for public interest fee waiver «
I am willing to pay up to $ » __ « to process my request. Please inform me if the fees will exceed that amount before proceeding.
» optional: insert request for expedited processing «
If this request is denied in whole or part, please justify all such denials by reference to specific exemptions, and provide an explanation of why » relevant agency « "reasonably foresees that disclosure would harm an interest" protected by that exemption or why "disclosure is prohibited by law[.]" 5 U.S.C. § 552(a)(8). Please also ensure that all segregable portions of otherwise exempt material are released.
If you have any questions regarding this request, please feel free to contact me at » provide contact information «
I look forward to your determination within » if non-expedited request: 20 working days; if expedited request, 10 calendar days « of this request, as is required by law. Thank you in advance for your assistance in this matter.
Sincerely,
» Requester name/signature and contact information «
Submitting the request
Agencies accept FOIA requests in different ways, including mail, email, fax, and online portals. A requester should consult the agency's regulations and website to determine how to submit the request. You can find information about an agency by searching for it in the box above or by navigating to it from the agency information landing page.
Recent district court cases on making FOIA requests
Recent district court cases regarding this topic from TRAC's FOIA Project. Visit their issue search page for more options.
See Also
External Links
FOIA.gov (federal FOIA portal allowing agencies to submit requests to many agencies, and containing submission information for other agencies)
References
- ↑ 5 U.S.C. § 552(a)(3)(A)
- ↑ See, e.g., Arevalo-Franco v. U.S. I.N.S., 889 F.2d 589, 591 (5th Cir. 1989)
- ↑ 5 U.S.C. § 552(a)(3)(E)
- ↑ 5 U.S.C. § 552(a)(3)(A)
- ↑ 5 U.S.C. § 552(a)(3)(A).
- ↑ Kowalczyk v. Dep’t. of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996) (quoting Yeager v. Drug Enforcement Admin., 678 F.2d 315, 326 (D.C. Cir. 1982)).
- ↑ Truitt v. Dep’t of State, 897 F.2d 540, 545 n. 36 (D.C. Cir. 1990) (quoting H.R. Rep. No. 93-876, 93d Cong., 2d Sess. at 6 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6271)).
- ↑ Hudgins v. Internal Revenue Serv., 620 F. Supp. 19, 21 (D.D.C. 1985).
- ↑ Id. at 22.
- ↑ Dale v. Internal Revenue Serv., 238 F. Supp.2d 99, 104 (D.D.C. 2002).
- ↑ Dale v. Internal Revenue Serv., 238 F. Supp.2d 99, 104 (D.D.C. 2002). (quoting Tax Analysts v. IRS, 117 F.3d 607, 610 (D.C. Cir. 1997)) (internal quotation marks omitted).
- ↑ Inst. for Justice v. Internal Revenue Serv., 941 F.3d 567, 572 (D.C. Cir. 2019)
- ↑ Shapiro v. Cent. Intelligence Agency, 170 F. Supp. 3d 147, 152 (D.D.C. 2016)
- ↑ Shapiro v. Cent. Intelligence Agency, 170 F. Supp. 3d 147, 154 (D.D.C. 2016)
- ↑ Dale, 238 F.Supp.2d at 104
- ↑ Irons v. Schuyler, 465 F.2d 608, 609-12 (D.C. Cir. 1972).
- ↑ Dale, 238 F.Supp. 2d at 104.
- ↑ Sack v. Cent. Intelligence Agency, 53 F. Supp. 3d 154, 164 (D.D.C. 2014)
- ↑ Sack v. Cent. Intelligence Agency, 53 F. Supp. 3d 154, 164 (D.D.C. 2014)
- ↑ Muckrock, Pre-processed records, not publicly available
- ↑ 5 U.S.C. § 552(a)(3)(B)
- ↑ Sample v. BOP, 466 F.3d 1086, 1087, 1089 (D.C. Cir. 2006); TPS, Inc. v. DOD, 330 F.3d 1191, 1195 (9th Cir. 2003)
- ↑ See, e.g., Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Educ., 905 F. Supp. 2d 161, 171 (D.D.C. 2012) ("Notwithstanding that it requested that DoEd search for records 'regardless of format, medium, or physical characters, and including electronic records and information,' CREW did not request that DoEd produce its records in electronic format, much less electronic format with metadata. See FOIA Request at 1–2. DoEd thus had no obligation to produce the documents in any particular format."); Facebook, Inc. & Subsidiaries v. Internal Revenue Serv., No. 16-CV-05884-LB, 2017 WL 2630086 (N.D. Cal. June 19, 2017) ("In sum, Facebook did not ask the IRS to produce documents in electronic, native format that contained metadata. It asked for all records 'whether maintained in electronic or hardcopy format,' but did not specify the format for production.").