CORPORATE TRANSACTIONS & COMPLIANCE BLOG

Frequently Asked Questions About the Freedom of Information Act (FOIA)

By: Andrew Hackett, COGENCY GLOBAL INC. on Mon, Nov 25, 2013

Freedom of Information Act RequestThe Freedom of Information Act, or FOIA, is the federal law that provides a person the right to obtain access to government agency records. Under the FOIA, government agencies have an obligation (which is enforceable in court) to disclose information that is requested of them, as long as that information is not protected from public disclosure.          

The FOIA was enacted on July 4, 1966, took effect a year later, and has been amended several times. It is considered by many to be a vital part of our democracy, providing a “right to know” how the government operates.           

The FOIA applies only to the Executive Branch of the federal government and does not cover the Judicial Branch (Federal Courts) or the Legislative Branch (Congress). Certain functions of the White House are also exempt. It also does not cover state government agency records, although comparable state laws may provide the same or similar rights.

Who Can Submit a FOIA Request?

Any person (or entity), regardless of citizenship, can submit a FOIA request. There are some limitations regarding foreign agents requesting records of U.S. intelligence agencies.

How Do I Submit a Request?

There is no specific form required to make a FOIA request, but a FOIA request must be in writing, must describe in a reasonable way the information that is being sought and it must comply with the requirements of the agency holding the records. It should describe in as much detail as possible the information desired and the format you want to receive it in.  

Federal agencies are required to have a FOIA page on their websites and agencies may accept FOIA requests submitted online, by email, fax or by mail. You must determine the correct agency that holds the records you seek and place your request with them – the FOIA does not require agencies to do research for you. The Department of Justice (DOJ) website, FOIA.gov, provides a good starting point for where to submit a FOIA request.

While there is no initial fee for submitting a FOIA request, agencies are allowed to charge for staff research time and copy fees beyond an initial two hours and 100 pages.  It is usually a good idea to place a fee limit in a FOIA request, which will trigger notification from the agency when that limit is approached.

What Types of Records Can Be Obtained Through the FOIA?

Any existing record held by a federal government agency can be requested through the FOIA.  However, the FOIA does not compel an agency to create records in response to your request, to analyze data or to answer written questions.                           

The FOIA establishes nine exemptions for types of information that are not required to be released because release would be harmful to government or private interests. There are also three exclusions regarding law enforcement or national security that may limit the response to your request. These are explained in detail in the DOJ’s Guide to the Freedom of Information Act (2009).

Many FOIA requestors seek information about themselves, or family members.  News organizations and government watchdogs use FOIA as tool to keep the government accountable.  FOIA can also reveal information related to the award of government contracts and serve a business  purpose.

When Can I Expect a Response?

The FOIA statute requires a standard response time of twenty working days but, in many cases, only an acknowledgement that the request was received arrives within that timeframe. Usually, a much longer period of time is needed for an agency to respond due to their backlog of requests, the research time required, staffing concerns and other factors. Requests for time extensions or for a narrowing of the request parameters are very common with FOIA requests. Expect a lot of back and forth with the agency before even a partial response to your request, with strict deadlines imposed for your responses.

What Do I Do When the Agency Response is Not What I Wanted?

If your request is denied in part or in its entirety, the agency is required to provide information about where to send an administrative appeal along with citing a time frame within which it must be filed. Beyond that, filing a suit in Federal Court is the last recourse.

When Should I Make a Freedom of Information Act Request?

Before making a FOIA request, make sure that the information you want is not already publically available. The FOIA requires agencies to proactively release certain information without receiving a request. Many agencies also maintain online FOIA libraries which contain material already requested and released.

Keep in mind that government agencies keep records of FOIA requests, which are, in turn, subject to FOIA. Therefore, it is possible to request a list of FOIA requestors and the subjects of their requests.  Some service companies offer an anonymous FOIA requesting service which can leave your name out of the process and, at the same time, handle much of the logistics involved.

For more information about submitting FOIA requests, visit the FOIA page of COGENCY GLOBAL INC.'s website or send an email to agency@cogencyglobal.com.

 

This article is provided for informational purposes only and should not be considered, or relied upon, as legal advice.

Topics: Freedom of Information Act