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Freedom of Information Act Tutorial

FOIA Tutorial

What is the FOIA
What documents can you request under FOIA
Tips for preparing your FOIA letter
Agency response obligations
Why records may be denied
Fees and fee waivers
FOIA exclusions
Administrative & judicial appeals
Recent FOIA Developments

What is the FOIA?
The Freedom of Information Act establishes a presumption that records in the possession of agencies and executive departments of the U.S. Government are accessible to the people. The FOIA sets standards for determining which records must be disclosed and which records can be withheld. The law provides administrative and judicial remedies for those denied access to records. Above all, the statute requires Federal agencies to provide the fullest possible disclosure of information to the public.

Together with the Privacy Act, the FOIA restricts the improper disclosure of personal information and provides for civil remedies where an individuals rights have been violated.

The Freedom of Information Act applies to documents held by agencies in the executive branch of the Federal Government. The executive branch includes:

Cabinet departments
Military departments
Government corporations
Government controlled corporations
Independent regulatory agencies
Other establishments in the executive branch.
The FOIA does not apply to the following:

Elected officials of the Federal Government, including the President, Vice President, Senators, and Congressmen Federal judiciary Private companies; persons who receive Federal contracts or grants; tax-exempt organizations; or State or local governments. All States and some localities have passed "Open Records" laws which, like the FOIA and Privacy Act, permit individuals access to records.

What documents can you request under the FOIA?
The FOIA provides that a requester must ask for existing records rather than information. This means that an agency is only required to look for an existing record or document in response to your FOIA request. The agency is not obliged to create a new record, collect information it does not possess, perform research or analyze data for a requester. Under the FOIA, any item containing information that is in the possession, custody, or control of an agency is usually considered to be an agency record. The form in which a record is maintained by an agency does not affect its availability. A request may seek a printed or typed document, tape recording, map, photograph, computer printout, computer tape or disk, or a similar item.

Tips for preparing your FOIA letter
Your FOIA request should be carefully written in order to obtain the desired information. Sometimes, an agency will help you identify a specific document that contains the information being sought. Other times, you may need to be creative while drafting when the FOIA request in order to identify an existing document or set of documents continuing the desired information. The law requires that each request must reasonably describe the records being sought. This means that your request must be specific enough to permit a professional employee of the agency who is familiar with the subject matter, to locate the record in a reasonable period of time. Because agencies organize and index records in different ways, one agency may consider a request to be reasonably descriptive while another agency may reject the same request as being too vague.

Make your requests as specific as possible. If a particular document is required, it should be identified precisely, preferably by date and title. However, sometimes this is not always possible. If you are unable to identify a specific record, than you should clearly explain to the agency your information needs.

EXAMPLE: Assume that you want to obtain a list of toxic waste sites near your home. A request to the Environmental Protection Agency for all records on toxic waste would cover many more records than are needed. The fees for such a request might be very high and it is possible that the request might be rejected as too vague. A request for all toxic waste sites within 2 miles of a particular address is very specific. However, it is not likely that the EPA would have an existing record containing data indexed or maintained in that manner. As a result, your request might be denied because there is no existing record containing the information. Therefore, you might do better to ask for a list of toxic waste sites in your city, county, or State. It is more likely that existing records will contain this information. Although you are not required to explain the purpose for the inforomation, you might want to tell the agency in the request letter exactly what information is desired. This additional explanation may help the agency to find a record that satisfies your need. You should include your telephone number with the request(s). Some questions about the scope of a request can be resolved quickly when an agency employee and the requester talk. This is an efficient way to resolve questions that arise during the processing of FOIA requests.

Remember, it is to everyone is advantage if your request is precise, and as narrow as possible. You benefit because the request can be processed faster and cheaper. The agency benefits because it can do a better job of responding to the request. The agency will also be able to use its resources to respond to a greater volume of requests. The FOIA works best when both the requester and the agency act cooperatively.

Requirements For Agency Responses
Each agency is required to determine within 10 days (excluding Saturdays, Sundays, and legal holidays) after the receipt of a request whether to comply with the request. This is rarely, if ever, accomplished. The actual disclosure of documents is required to follow promptly thereafter. If a request is denied in whole or in part, the agency must tell the requester the reasons for the denial. The agency must also tell the requester that there is a right to appeal any adverse determination to the head of the agency. The FOIA permits an agency to extend the time limits up to 10 days in unusual circumstances. These circumstances include the need to collect records from remote locations, review large numbers of records, and consult with other agencies. The agency is supposed to notify the requester whenever an extension is invoked.

Most agencies assign inadequate resources to FOIA offices. Congress does not condone the failure of any agency to meet the law's time limits. However, as a practical matter, there is little that a requester can do about it. The courts have been reluctant to provide relief solely because the FOIA's time limits have not been met.

The best advice to requesters is to be patient. The law allows a requester to consider that his or her request has been denied if it has not been decided within the time limits. This permits the requester to file an administrative appeal or file a lawsuit in Federal District Court. However, this is not always the best course of action. The filing of an administrative or judicial appeal will not necessarily result in any faster processing of the request.

Each agency generally processes requests in the order of receipt. Some agencies will expedite the processing of urgent requests. Anyone with a pressing need for records should consult with the agency FOIA officer about how to ask for expedited treatment of requests.

Reasons why records may be denied under the FOIA
An agency may refuse to disclose, in whole or on part, an agency record that falls within any of the FOIA's nine statutory exemptions. The exemptions protect against the disclosure of information that would harm national defense or foreign policy, privacy of individuals, proprietary interests of business, functioning of the government, and other important interests. A document that does not qualify as an agency record may be denied because only agency records are available under the FOIA. An agency may withhold exempt information, but it is not always required to do so. For example, an agency may disclose an exempt internal memorandum because no harm would result from its disclosure. However, an agency is not likely to agree to disclose an exempt document that is classified or that contains a trade secret.

When a record contains some information that qualifies as exempt, the entire record is not necessarily withheld. Instead, the FOIA specifically provides that any reasonably segregable portions of a record must be provided to a requester after the deletion of the portions that are exempt. This is a very important requirement because it prevents an agency from withholding an entire document simply because one line or one page is exempt.

EXEMPTION l - Classified Documents.
The first FOIA exemption permits the withholding of properly classified documents. Information may be classified in the interest of national defense or foreign policy. Nevertheless, classified documents may be requested under the FOIA. The agency is required to review the documents to determine if it still warrants protection. If a requested document is declassified, it can be released in response to a FOIA request.

EXEMPTION 2 - Internal Personnel Rules And Practices.
The second FOIA exemption covers matters that are related solely to an agency's internal personnel rules and practices. As interpreted by the courts, there are two separate classes of documents that are generally held to fall within this exemption. Generally, information relating to personnel rules or internal agency practices is exempt if it is trivial administrative matter of no genuine public interest, (e.g. A rule governing lunch hours for agency employees). Second, an internal administrative manual can be exempt if disclosure would risk circumvention of law or agency regulations. In order to fall into this category, the material will normally have to regulate internal agency conduct rather than public behavior.

EXEMPTION 3 - Information Exempt Under Other Laws.
The third FOIA exemption incorporates into the FOIA other laws that restrict the availability of information. To qualify under this exemption, a statute must require that matters be withheld from the public in such a manner as to leave no discretion to the agency. Alternatively, the statute must establish particular criteria for withholding or refer to particular types of matters to be withheld.

EXEMPTION 4 - Confidential Business Information.
The fourth FOIA exemption protects from public disclosure two types of information: Trade secrets and confidential business information.
A trade secret is a commercially valuable plan, formula, process, or device. This is a narrow category of information.

The second type of protected data is commercial or financial information obtained from a person and privileged or confidential. The courts have held that data qualifies for withholding if disclosure by the government would be likely to harm the competitive position of the person who submitted the information. Detailed information on a company's marketing plans, profits, or costs can qualify as confidential business information. Information' may also be withheld if disclosure would be likely to impair the government's ability to obtain similar information in the future.

Agencies should notify the submitter of business information that disclosure of the information is being considered. However, our experience has found that in many cases the agencies fail to provide adequate, if any, predisclosure notification to the submitter of the information. Therefore, contractors should regularly monitor the agency FOIA log. [See: "Reverse FOIA" at FOIA Group home page] The submitter then has an opportunity to convince the agency that the Information qualifies for withholding. A submitter can also file suit to block disclosure under the FOIA. Such lawsuits are generally referred to as "reverse" FOIA lawsuits-because the FOIA is being used in an attempt to prevent rather than to require the disclosure of information. A reverse FOIA lawsuit may be filed when the submitter of documents and the government disagree whether the information is confidential.

EXEMPTION 5 - Internal Government Communications.
The FOIA's fifth exemption applies to internal government documents. An example is a letter from one government department to another about a joint decision that has not yet been made. Another example is a memorandum from an agency employee to his supervisor describing options for conducting the agency's business.
The purpose of the fifth exemption is to safeguard the deliberative policy making process of government. The exemption encourages frank discussion of policy matters between agency officials by allowing supporting documents to be withheld from public disclosure. The exemption also protects against premature disclosure of policies before final adoption.

Factual information related to the policy process. Factual information must be disclosed unless it is inextricably intertwined with protected information about an agency decision.

Protection for the decision making process is appropriate only for the period while decisions are being made. Thus, the fifth exemption has been held to distinguish between documents that are pre decisional and therefore may be protected, and those which are post-decisional and therefore not subject to protection. Once a policy is adopted, the public has a greater interest in knowing the basis for the decision.

The exemption also incorporates some of the privileges that apply in litigation involving the government. For example papers prepared by the government lawyers can be withheld in the same way that papers prepared by private lawyers clients are not available through discovery in civil litigation.

EXEMPTION 6 - Personal Privacy.
The sixth exemption covers personnel, medical, and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy. This exemption protects the privacy interests of individuals by allowing an agency to withhold intimate personal data kept in government files. Only individuals have privacy interests. Corporations and other legal persons have no privacy rights under the sixth exemption.
The exemption requires agencies to strike a balance between an individual's privacy interest and the public's right to know. However, since only a clearly unwarranted invasion of privacy is a basis for withholding, there is a perceptible tilt in favor of disclosure in the exemption. Nevertheless, the sixth exemption makes it harder to obtain information about another individual without the consent of that individual

EXEMPTION 7 - Law Enforcement.
The seventh exemption allows agencies to withhold law enforcement records in order to protect the law enforcement process from interference. The exemption retains six specific sub-exemptions.
Exemption (7)(A) allows the withholding of a law enforcement record that could reasonably be expected to interfere with enforcement proceedings. This' exemption protects an active law enforcement investigation from interference through premature disclosure.

Exemption (7)(B) allows the withholding of information that would deprive a person of a right to a fair trial or-an impartial adjudication. This exemption is rarely used.

Exemption (7)(C) recognizes that individuals have a privacy interest in information maintained in law enforcement files. If the disclosure of information could reasonably be expected to constitute an unwarranted invasion of personal privacy, the information is exempt from disclosure. The standards for privacy protection in Exemption (6) and Exemption (7)(C) differ slightly. Exemption (7)(C) protects against an unwarranted invasion of personal privacy while Exemption (6) protects against clearly a unwarranted invasion. Also, Exemption (7)(C) allows the withholding of information that "could reasonably be expected to" invade someone's privacy. Under Exemption (6), information can be withheld only if disclosure would invade someone's privacy.

Exemption (7)(D) protects the identity of confidential sources. Information that could reasonably be expected to reveal the identity of a confidential source is exempt. A confidential source can include A State, local, or foreign agency or authority, or a private institution that furnished information on a confidential basis. In Addition the exemption protect information furnished by a confidential source if the data was compiled by a criminal law enforcement authority during a criminal investigation or by an agency conducting a lawful national security intelligence investigation.

Exemption (7)(E) protects from disclosure information that would reveal techniques and procedures for law enforcement investigations or prosecutions or that would disclose guidelines for law enforcement investigations or prosecutions if disclosure of the information could reasonably be expected to 'risk circumvention of the law.

Exemption (7)(F) protects law enforcement information that could reasonably be expected to endanger the life or physical safety of any individual.

EXEMPTION 8 - Financial Institutions.
The eighth FOIA exemption protects information that is contained in or related to examination, operating, or condition reports prepared by or for a bank supervisory agency such as the Federal Deposit Insurance Corporation, the Federal Reserve, or similar agencies.

EXEMPTION 9 - Geological Information.
The ninth FOIA exemption covers geological and geophysical information, data, and maps about wells. This exemption is rarely used.

Fees & Fee Waivers
FOIA requesters must be willing to pay fees covering some or all of the costs of processing their requests. The FOIA establishes three types of fees that may be charged. Under the FOIA, there are three categories of requesters. Different fees apply to different types of FOIA requesters.

FOIA Requester Categories
The first category includes FOIA requesters seeking records for commercial use. Commercial use is not defined in the law, but it generally includes profit making activities. A commercial user can be charged reasonable standard charges for document duplication, search, and review.
The second category includes FOIA requesters who are representatives of the news media, and educational or non-commercial scientific institutions whose purpose is scholarly or scientific research. A FOIA requester in this category who is not seeking records for commercial use can be only billed for reasonable standard document duplication charges. A FOIA request for information from a representative of the news media is not considered to be for commercial use if the request is in support of a news gathering or dissemination function.

The third category of FOIA requester includes everyone not in the first two categories. People seeking information for personal use, public interest groups, and nonprofit organizations are examples of requesters who fall into the third group. Charges for these FOIA requesters are limited to reasonable standard charges for document duplication and search. Review costs may not be charged. There is no charge for the first two hours of search time and for the first 100 pages of documents. A non-commercial requester who limits a request to a small number of easily found records will not usually pay any fees at all.

FOIA processing fees may be charged by the agency for search, review and document duplication, which are all clearly defined in the law.

Document Duplication: Fees can be imposed to recover the cost of copying documents. All agencies have a fixed per page price for duplicating material using copying machines. A requester is usually charged the actual cost of copying computer tapes, photographs, and other nonstandard documents.
Search: Fees can also be imposed to recover the costs of searching for documents. This includes the time agency personnel spent looking for material responsive to your request. A requester can minimize search charges by making clear, narrow requests for identifiable documents whenever possible.

Review: Fees can be charged to recover review costs. Review is the process of examining documents to determine whether any portion is exempt from disclosure. Review charges only include costs incurred during the initial examination of a document. An Agency cannot charge for any costs incurred in resolving issues of law or policy that may arise while processing your request.

FEE Waivers
Fees may be waived or reduced if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. Determinations about fees are separate and distinct from determinations about fee waivers. For example, a requester who can demonstrate that he or she is a news reporter may only be charged duplication fees. But a requester found to be a reporter is not automatically entitled to a waiver of those fees. A reporter who seeks a waiver must demonstrate that the request also meets the standards for waivers.

Normally, only after a requester has been categorized to determine the applicable fees does the issue of a fee waiver arise. A requester who seeks a fee waiver should ask for a waiver in the original request letter. However, a request for a waiver can be made at a later time. The requester should describe how disclosure will contribute to public understanding of the operations or activities of the government. The sample request letter in the appendix includes optional language asking for a fee waiver.

Any requester may ask for a fee waiver. Some will find it easier to qualify than others. A news reporter who is only charged duplication costs may still ask that the charges be waived because of the public benefits that will result from disclosure. A representative of the news media, a scholar, or a public interest group are more likely to qualify for a waiver of fees. A commercial user may find it difficult to qualify for waivers.

The eligibility of other requesters will vary. A key element in qualifying for a fee waiver is the relationship of the information to public understanding of the operations or activities of government. Another important factor is the ability of the requester to convey that information to other interested members of the public. A requester is not eligible for a fee waiver solely because of indigence.

FOIA Exclusions
The exclusions allow an agency to treat certain exempt records as if the records were not subject to the FOIA. An agency is not required to confirm the existence of three specific categories of records. If these records are requested, the agency may respond that there are no disclosable records responsive to the request. However, these exclusions do not broaden the authority of any agency to withhold documents from the public. The exclusions are only applicable to information that is otherwise exempt from disclosure.
The first exclusion may be used when a request seeks information that is exempt because disclosure could reasonably be expected to interfere with a current law enforcement investigation

The second exclusion applies to informant records maintained by a criminal law enforcement agency under the informant's name or personal identifier. The agency is not required to confirm the existence of these records unless the informant's status has been officially confirmed. This exclusion helps agencies to protect the identity of confidential informants. Information that might identify informants has always been exempt under the FOIA.

The third exclusion only applies to records maintained by the Federal Bureau of Investigation which pertain to foreign intelligence, counterintelligence, or international terrorism. When the existence of these types of records is classified, the FBI may treat the records as not subject to the requirements of FOIA.

Administrative Appeal Procedures
Whenever a FOIA request is denied, the agency must inform the requester of the reasons for the denial and the requester's right to appeal the denial to the head of the agency. A requester may appeal the denial of a request for a document or for a fee-waiver. A requester may contest the type or amount of fees that were charged. A requester may appeal any other type of adverse determination including a rejection of a request for failure to describe adequately the documents being requested. A requester can also appeal because the agency failed to conduct an adequate search for the documents that were requested. A person whose request was granted in part and denied in part may appeal the part that was denied. If an agency has agreed to disclose some but not all requested documents, the filing of an appeal does not affect the release of the documents that are disclosable. There is no risk to the requester in filing an appeal.

The appeal to the head of the agency is a simple Administrative appeal. A lawyer can be helpful, but no one needs a lawyer to file an appeal. Anyone who can write a letter can file an appeal. Appeals to the head of the agency often result in the disclosure of some records that had been withheld. A requester who is not convinced that the agency's initial decision is correct should appeal. There is no charge for filing an administrative appeal.

An appeal is filed by sending a letter to the head of the agency. The letter must identify the FOIA request-that is being appealed. The envelope containing the letter of appeal-should be marked in the lower left hand corner with the words "Freedom of Information Act Appeal."

Many agencies assign a number to all FOIA requests that are received. The number should be included in the appeal letter, Along with the name and address of the requester. It is a common practice to include a copy of the agency's initial decision letter as part of the appeal, but this is not required. It can also be helpful for the requester to include a telephone number in the appeal letter.

An appeal will normally include the requester's arguments supporting disclosure of the documents. A requester may include any facts or any arguments supporting the case for reversing the initial decision. However, an appeal letter does not have to contain any arguments at all. It is sufficient to state that the agency's initial decision is being appealed. Appendix 1 includes a sample appeal letter.

The FOIA does not set a time limit for filing an administrative appeal of an FOIA denial. However, it is good practice to file an appeal promptly. Some agency regulations establish a time limit for filing an administrative appeal. A requester whose appeal is rejected by an agency because it is too late may refile the original FOIA request and start the process again.

A requester who delays filing an appeal runs the risk that the documents could be destroyed. However, as long as an agency is considering a request or an appeal, the agency must preserve the documents.

An agency is required to make a decision on an appeal within 20 days (excluding Saturdays, Sundays, and Federal holidays). It is possible for an agency to extend the time limits by an additional 10 days. Once the time period has elapsed, a requester may consider- that the appeal has been denied and may proceed with a judicial appeal. However, unless there is an urgent need for records this may not be the best course of action. The courts are not sympathetic to appeals based solely on an agency's failure to comply with the FOIA's time limits.

Recent FOIA Developments
In 1996, Congress passed the Electronic Freedom of Information Improvement Act which will significantly affect FOIA processing. Agencies will be required to receive and disseminate records electronically, and meet strict processing guidelines. We will assess the impact in the future months after agencies have had a chance to implement their regulatory response.

New Prohibition governing release of winning proposals: Section 821 of the National Defense Authorization Act for Fiscal Year 1997, P.L. 104-201, contains a prohibition against the release of any proposal under the Freedom of Information Act submitted by a contractor in response to a solicitation for a competitive procurement, unless the proposal was specifically set forth or incorporated by reference into the contract.

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