is the FOIA?
Enacted in 1966, The Freedom of Information Act (FOIA) is a federal
law that establishes the public's right to obtain information from federal
government agencies. The FOIA is codified at 5 U.S.C. Section 552. "Any
person" can file a FOIA request, including U.S. citizens, foreign
nationals, organizations, associations, and universities. In 1974, after
the Watergate scandal, the Act was amended to force greater agency compliance.
It was also amended in 1996 to allow for greater access to electronic
can I send a FOIA request to?
The FOIA applies to Executive Branch departments, agencies, and offices;
federal regulatory agencies; and federal corporations. Congress, the
federal courts, and parts of the Executive Office of the President that
function solely to advise and assist the President, are NOT subject
to the FOIA. Records obtainable under the FOIA include all "agency
records" - such as print documents, photographs, videos, maps,
e-mail and electronic records - that were created or obtained by a Federal
agency and are, at the time the request is filed, in that agency's possession
and control. Agencies are required by FOIA to maintain information about
how to make a FOIA request, including a handbook, reference guide, indexes,
and descriptions of information locator systems. The best place to get
this information is on the agencies' websites. Doing research to determine
the right office to send the FOIA request to within the right component
of the right agency will make your FOIA efforts more productive.
are the FOIA exemptions?
can I obtain agency records without using the FOIA?
Older material dated before the mid-1970s may be available at the National
Archives and Records Administration in Washington, DC or College Park,
MD, or at one of the Presidential libraries. These archives are great
places to do research using readily available documents. If the documents
you seek are not yet publicly available, a requester may also file a
Mandatory Declassification Review (MDR) request rather
than a Freedom of Information Act request. The laws are similar, but
have some key differences.
to submitting an MDR request instead of a FOIA -
mandatory declassification review, there is a two-appeal system. The
first appeal is to the agency denying the records and, if the agency
continues to deny records, there is an opportunity for a second appeal
to the Interagency Security Classification Appeals Panel (ISCAP) for
- In its
report to the president on its 2002 activities, ISCAP noted that it
had reversed agency classification of information in 75 percent of
the documents it reviewed. The President of the United States is empowered
to overrule ISCAP decisions.
to submitting a FOIA request instead of an MDR -
are more appropriate if you have a large or imprecise request that covers
many different kinds of classified and unclassified documents. Only
classified documents are subject to MDR. FOIA covers both classified
and unclassified material.
" FOI requesters appeal denials of their requests within the agency
and then to court. For the duration of the processing of an MDR request,
the requester loses the opportunity to argue in court for the release
of the records.
" Also, under the mandatory declassification review, agencies are
allotted a longer time to respond to requesters, do not have to abide
by expedited review requirements and are not authorized to waive fees.
Under the FOIA agencies have specific time requirements, as well as
opportunities for expedited review and fee waivers.
Requesters should seek mandatory declassification review only if they
have a very clear idea of the records they are seeking (for example,
knowing a specific document by name), if they also know that the records
are 10+ years old, and that the records are probably still classified.
Otherwise a FOIA request is a requester's best bet.
does it cost to make a FOIA request?
are authorized to charge certain fees associated with the processing
of requests. Some categories of requesters cannot be charged these fees
and in some cases fees can be reduced or waived.
FOIA, solely for fee purposes, an agency is required to determine the
projected use of the records sought by the FOIA request and the type
of requester asking for the documents. As the FOIA was intended to promote
the public's access to information, news media organizations and educational
institutions are excused from certain fees.
for FOIA are:
- Companies that or people who seek information for a use or purpose
that furthers commercial, trade, or profit interests, including for
use in litigation. Commercial requesters are required to pay for search,
review and duplication costs.
Institution - Preschools, public or private elementary or secondary
schools, and institutions of graduate higher education, undergraduate
higher education, professional education, or vocational education
that operate a program(s) of scholarly research. Educational requesters
are required to pay duplication costs, but are entitled to the first
100 pages without charge.
Scientific Institution - Non-commercially operated institutions
that conduct scientific research not intended to promote any particular
product or industry. Non-commercial requesters are required to pay
duplication costs, but are entitled to the first 100 pages without
of the News Media - People who actively gather news for entities
organized and operated to publish or broadcast news to the public.
News Media requesters are required to pay for duplication, but are
entitled to the first 100 pages without charge.
Requesters - Requesters who do not fit into any of the above categories.
These requesters are persons who are not commercial, news media, scientific
or educational requesters and are required to pay search costs for
more than 2 hours and duplication costs for more than 100 pages.
that you belong in an educational, news media or non-commercial fee
category, provide information about the intended professional scholarly
or journalistic uses of the information you receive. List any relevant
previous or pending publications, including books, articles, dissertations,
publication contracts or letters of intent or interest, or similar information
that shows your ability to disseminate the information you receive from
the agency. State that the materials are not requested solely for a
private, profit-making commercial purpose. You should request that,
to the extent any fees are assessable, the agency notify you if those
fees will exceed an amount you specify. For a court decision interpreting
the fee provisions of the FOIA, see National Security Archive v.
Department of Defense, 880 F.2d 1381 (D.C. Cir. 1989).
search, review and duplication fees vary by agency. Search/Review fees
can be anywhere $8.00 to $45.00 per hour and duplication fees can be
from $.10 to $.35 per page. Agencies cannot require a requester to make
an advance payment unless the agency estimates that the fee is likely
to exceed $250 or the requester previously failed to pay proper fees.
FOIA it is possible to have all fees, including copying, waived by the
agency if the material requested "is likely to contribute significantly
to public understanding of the operations or activities of government
and is not primarily in the commercial interest of the requester."
If your request fits this statutory criterion, you should make your
case for a fee waiver in your request letter as strongly as possible.
Be sure to describe the scholarly, historical, or current public interest
in the material requested, identify specific operations or activities
of government to which the request relates, why the information will
contribute to an understanding of those activities and operations, why
the public in general would be interested, and why the disclosure would
happens after I make a FOIA request?
Ideally, the agency will promptly release everything you requested.
More common agency responses (and suggested actions you can take) include
receive an acknowledgment of your request and a statement that the
request has been placed in the queue and will be processed in its
turn. Agencies are allowed to process requests on a first-come, first-served
basis, and may also process requests in separate queues depending
on their complexity. If the agency has a backlog of requests (and
most do), you may have to wait some time before you receive the materials
you seek. Call or write the FOIA office to follow up on requests that
have been pending for an unreasonable period of time. Get the names
of specific FOIA personnel you can contact about your request. If
agencies fail to meet the twenty-business day response time provided
by the FOIA, you are entitled to file an administrative appeal or
a lawsuit. Please keep in mind that if your request is complex and
of a sensitive nature the agency will require a significant amount
of time to search and review the responsive records. It can take years
to get a response to a FOIA request.
request for a fee waiver is acknowledged but more information is sought
before the agency will begin processing the request. Sometimes the
agency asks a series of questions, sometimes a multi-page questionnaire
may be enclosed for you to fill out and return. The best way to avoid
this response is to provide as much information as possible in your
initial letter to support your request for a fee waiver.
agency says that no records were found in response to your request,
or informs you that your request is too broad. Call or write the FOIA
office and ask what additional information is needed from you to make
your request more specific. Explain why you believe the agency has
material responsive to your request and inquire about other places
in the agency's files where relevant records might be found. If no
records were found you may send an appeal questioning the agency's
adequacy of search.
relevant to your request is found, but the agency withholds all or
part of it. The FOIA allows an agency only nine exemptions from its
obligation to provide information in response to a request. The citation
of these exemptions, found at 5 U.S.C. Section 552(b) and listed above,
can be appealed.
can I appeal an adverse response?
It is worthwhile to file an administrative appeal if the agency's response
is unsatisfactory. Appeals can be effective to successfully challenge
excessive processing delays, fee waiver denials, and the improper full
or partial withholdings of responsive documents. Agency regulations
governing appeals vary; take careful note of the instructions for filing
an appeal in the agency's response to ensure that your appeal is timely.
An appeal letter should state the grounds for appeal and reasons why
the agency's response to the request was improper, request a more precise
explanation of the agency's decision (if the reasons for the initial
determination were unclear), and say that you expect a final ruling
on the appeal within the 20-day statutory time limit. [See the sample
FOIA appeal below.]
else should I know?
Don't be discouraged if the agency is less than fully responsive to
your request. Contact the agency's FOIA office to check on the status
of your request and to see if additional information is needed to expedite
processing or to clarify what you want. Keep copies of all your correspondence
and notes of all phone calls. Always file an appeal letter if the initial
response is inadequate. If the agency fails to respond satisfactorily,
you may wish to seek the assistance of a member of Congress to contact
the agency on your behalf. If all else fails, you have the right to
go to court to force the agency to release the documents.
unexpected problems might I encounter during the FOIA process?
delays, delays - For a variety of reasons most agency FOIA offices
suffer from a backlog of requests which can amount to an enormous delay
for a FOIA requester. Keep your request as targeted and concise as possible
and do as much research as you can on where the documents requested
could be located within the agency. Finding aids are great tools. If
you have the agency's box number, file or document number, your request
will be processed faster. Keep in contact with the FOIA office to make
sure your request has not fallen through the cracks.
Files Exemption - A 1984 law allowed the CIA to exempt its operational
files from the search and review requirements of the Freedom of Information
Act. Similar operational files exemptions exist for the National Reconnaissance
Office (NRO), the National Geospatial-Intelligence Agency (NGA) - formerly
the National Imagery and Mapping Agency (NIMA) - and the National Security
Agency (NSA). This allows these agencies or certain components of these
agencies to exempt their working files from the search and review requirements
of the Freedom of Information Act (FOIA).
(3) Glomar - Agencies can avoid a decision on the release of records if the fact
of the existence of the records is in itself classifiable. In a FOIA
case involving a request for records pertaining to the submarine retrieval
ship the Glomar Explorer, an appeals court allowed the CIA to neither
confirm nor deny the existence of the requested records. The "Glomar"
response has been routinely invoked since if an agency wishes to withhold
disclosing the existence or lack of existence of records.
Secrecy - Although the FOIA has standardized language and there
exist specific guidelines for redaction processes, there can be differences
in decisions to withhold information, both between and within agencies.
In the appeal process these discrepancies should be worked out, but
some mistakes may follow through to a final decision. As a last resort
you can always seek judicial review in court. See the National Security
Archive's briefing book on Dubious Secrets http://nsarchive2.gwu.edu/NSAEBB/NSAEBB90/index.htm