How To Get Government Records Under the Freedom of Information Act (FOIA)

You may go through your entire life without ever needing access to government documents. If the need arises to view government records, the Freedom of Information Act (FOIA) provides a way to access them.

The FOIA is a federal law that allows citizens to request information from federal government agencies that is otherwise not publicly available. Requesting these documents can be time-consuming, but the process itself is straightforward.

This article examines the process for requesting government records under the FOIA. It also discusses the types of information you can access under federal law, as well as the act’s limits. If the government denies your request, we’ll explain your available options and the best next step to take.

The Freedom of Information Act should provide transparency in the federal government. If you encounter obstacles, contact a local civil rights attorney for assistance with your FOIA request.

Understanding the Freedom of Information Act and Public Records Laws

The FOIA exists so that American citizens can access certain government records. While there are restrictions, most information is available to the public as long as they file the proper FOIA request.

To file a FOIA request, you must first confirm whether the information you want is protected by the Act. If the requested records fall under one of the act’s exclusions, the United States government will deny your request. As long as your request meets the eligibility requirements, your request should be granted.

After confirming that you can access the records, the next step is to determine which agency has the authority to release them to you. For example, court opinions or public safety information would likely be found at the Department of Justice (DOJ).

There are limitations on the information you can obtain under the FOIA. National security issues can lead to denial, so don’t expect to be given nuclear codes. However, all federal agency records are available unless they fall into one of nine exemptions.

State and Local Alternatives to the FOIA

All 50 states have their own FOIA laws, which allow state citizens to access records created and maintained by local governments. Let’s take a look at a few examples.

New Jersey has the “Open Public Records Act” (OPRA), which allows state residents to request and obtain records maintained by public agencies. The requests are anonymous and share many of the same restrictions on the types of information you can receive as federal law.

California also has a state law that grants residents the right to view and obtain certain government documents. Under the “California Freedom of Information Act”, the California government allows citizens to request copies of state and local government records. As with New Jersey, this has built-in exemptions similar to the federal FOIA exemptions.

Dealing with bureaucracy at any level can be frustrating. If you need additional information or help with accessing government records in your state, consider speaking with a local civil rights attorney.

When To Use Federal or State FIOA Requests

Whether to use a federal FOIA request or a state-level request will depend on the type of record you need and the reason you need it. Some request records out of curiosity, while others rely on the FOIA to help defend a client in a criminal case.

When dealing with a federal agency, such as the Internal Revenue Service, file a FOIA request with the federal government. In a criminal matter, a defense attorney would file a request for law enforcement records under your state’s freedom of information law instead.

States may refer to these laws as freedom of information laws, “Sunshine Laws,” or “Right to Know” laws. If you aren’t sure how to file your request, consult a local civil rights attorney for help. They can also explain FOIA regulations for both state and federal laws.

Before You File: Important First Steps

There are specific steps you must take before you file your information request. Make sure you know which documents or records you need and which agency is responsible for handling your request.

The steps you take before you file your request can make the difference between approval and denial. This is regardless of whether the agency you are seeking information from has guidelines.

First, ensure that the information is not already publicly available. The U.S. government is the largest publisher in the world, and federal agency decisions are intentionally transparent. If you’re concerned about an agency rule or regulation that could affect you or your business, you can likely learn a great deal about it from already published materials.

The Federal Register provides information on the publication of all agency materials. Before issuing a rule, agencies often issue a “proposed rule” and allow the general public to comment or point out problems before making it official.

Search the FOIA reading rooms at FOIA.gov before you file any request for information. Most agencies have electronic reading rooms where you can search for the information you need. It’s one of the best ways to find information you want if it’s already been published.

You can also visit the Office of Government Information Services (OGIS). They maintain their own records, especially those that are archived. They also offer online resources with publicly available records.

If the information is not publicly available, your next step is determining which agency should fulfill your request. If you aren’t sure which agency to contact, you can search for federal agencies and submit a request on the FOIA website. Once you have established that the information is unavailable and know which agency you need it from, you can file an FOIA request.

How To File a FOIA Request: The FOIA Process

Anyone can file a FOIA request. Some agencies have online submission forms or guides that help them to understand the nature of your request. Once you determine which agency will handle your request, check their procedure. Most agencies have a web page offering guidelines for submitting an information request.

Tips for Filing a Request

While it’s possible to file a broad FOIA request, it helps to be as specific as possible. Otherwise, you risk getting too little information, too much information, or a long wait time while the agency fulfills your request. You can check the status of your request if it seems to be taking too long.

Processing requests can take decades, even if you request the information on an expedited basis. Agencies can also deny claims that are unreasonable, so it helps to tailor your request to the information you really need. In addition, an overly broad request can lead to higher fees.

Here are some tips for filing a successful FOIA request:

• Be specific: If you know it, provide the title of the document you are requesting. If not, be as specific as possible to help the agency identify the document you are looking for. Provide dates or a date range if at all possible.
• Keep it short: Don’t make your request longer than it has to be. You don’t need to justify the request. You have a right to any non-exempt information, so the issue is getting the document you want, not the reason behind it. Be as brief as you can while still giving all of the information the agency needs.
• Identify yourself: This will help the agency determine what fees to charge you. If you are using it for non-commercial purposes, be sure to state that so you are not charged an extra fee. You can also request a fee waiver.
• Be reasonable: An agency can deny a request if it is unreasonable, so be the person who makes it an easy one to fulfill. Have you given details that make it easier to find? How should they give you the information? After reading your request, is it clear what documents you are looking for?

The government receives a blizzard of FIOA requests every day, so don’t expect immediate results.

How To Submit Your Request

You can submit your information request to the appropriate agency in various formats, such as by mail or email. Visit the agency’s .gov website and locate the correct email address. If you cannot locate it, call and ask for the best email address to use.

Using an online portal is the most popular method currently in use. It’s the quickest and most efficient way to file a request.

Whatever you can do to increase the chance of responsive records, do it. These agencies receive many, many requests every year. It takes time to sift through them and respond.

Once you decide on the method for submitting your request, make sure you provide the agency with your contact information. It does you no good if the agency gathers your records and has no idea where to send them.

How To Request a Fee Waiver

Most government agencies will allow you to request a fee waiver, which you must include with your initial FOIA request. You must clearly state that you are requesting a fee waiver and that you are qualified to do so.

To qualify for a fee waiver, your request must include the following:

• Demonstrate that the information you are requesting is in the greater public interest and will contribute to the public’s understanding of government activities and operations
• Provide a detailed justification for the waiver that clearly indicates that the purpose of the request is not for commercial use
• Demonstrate that there is a public interest in the subject matter
• Reiterate that you are not requesting the information primarily for commercial reasons

As mentioned above, try to provide all the important information in as few words as possible.

What To Expect After You File Your Request

Like it or not, the only thing you can do after submitting your FOIA request is wait. It can take quite some time for the government agency to identify, gather, and reproduce copies of the information you requested.

As long as you followed the guidelines in your request from a federal agency, you should expect a reasonable response time. Under the FOIA, federal agencies must respond to an initial FOIA request within 20 business days of receipt.

The response can be any of the following:

• Acknowledgment of receipt of the request
• Decision to grant or deny the request
• Notify the sender of an extension

You can track the status of your request. Each agency is different, but the best way to do this is to visit the governmental website and look for a section where you can track your request.

How Do Federal Agencies Handle Expedited Information Requests?

Sometimes, you need the information as soon as possible. To qualify for an expedited request, you must demonstrate a compelling need for the information. For example, if you need the records to meet an urgent physical safety concern, you may qualify for expedited processing. If granted, an expedited timeline is different from the norm.

For expedited requests, government agencies must respond within 10 days of receipt. If approved, the request must be processed as soon as it is practicable. Given the different complexities of requests, there’s no hard deadline. Still, it should decrease your wait.

In general, all expedited requests are processed within 20 days of receipt. If it will take longer, the agency will notify you.

Partial Responses and Rolling Productions

There are times when a government agency cannot provide all the records you requested. If this is the case, the agency will send the information they do have and explain that some of the records are not discloseable.

There are also times when the information you requested is coming from multiple locations and will be provided on a rolling basis. This means that they will send the information to you piecemeal, as they segregate the non-exempt documents.

What Information Is Not Available Under the FOIA?

While any non-exempt agency materials and documents must be disclosed, no federal agency is required to do extra research or answer questions. Some agencies, such as the Equal Employment Opportunity Commission (EEOC) and the IRS, will occasionally answer common questions or issue guidance on new rules or regulations. These are published in opinion letters but are not associated with the FOIA.

There are broad exceptions to the FOIA. If your request falls under at least one of the nine exemption categories, the agency will not release the information. In some cases, the agency can provide relevant documents while redacting any exempt information. The nine exemption classifications are:

• Classified information: Information and documents that have been properly designated as classified to protect national security are exempt
• Agency internal personnel information: A request to see the annual reviews of a federal employee would fall into this category, along with other sensitive information related to employment and agency practices.
• Statutory exemptions: Sometimes Congress will specifically exempt information from FOIA requests
• Trade secrets or financial information on a business: If the release of the document could hurt the business interests of a company, it is exempt
• Deliberative process: If the request involves a memorandum or opinion between agency employees that is based on personal preference and not official policy or positions, the request could be denied
• Invasion of privacy: You cannot get personal identifying information of federal employees that could harm any individual
• Protected law enforcement information: You cannot get documents related to an open criminal investigation
• Financial institution information: Information related to the supervision of banks and other financial institutions is exempt
• Information on geological data concerning wells: This rarely-used exemption may protect sensitive information about oil and gas drilling from speculators

Requests that fall under any of these exemptions are likely to be denied.

You Can Be Charged for a FOIA Request (But Not Much)

When you file a FOIA request, you are asking the federal (or state) government to gather records, make copies of these records, and send them to you. This takes time and manpower. It’s only logical that the government would charge for this service, although it’s likely that you won’t have to pay a fee.

While there’s no fee to submit a request, a government agency can charge you a fee if any of the following exist:

• Your request contains more than 100 pages of documents
• It takes longer than two hours for the agency to fulfill the request
• The request is for a commercial purpose

It is possible to get a fee waiver if the release of the information is in the public interest. You can also set a limit on how much you are willing to pay when submitting your request. Most agencies will notify you if the fee will exceed $25.

What Happens if the Government Denies Your FOIA Request?

As long as the records you request are not subject to any of the nine exemptions, there is a good chance the government will fulfill your request. If an agency decides that the information you requested is exempt, you can challenge the decision by filing an administrative appeal. You can file an appeal for any of the following reasons:

• The government agency did not respond to your request
• Failure to perform an adequate search for the requested records
• Unfair determination that the requested information is an exemption
• Improper restrictions on the information you requested

When you file your appeal, you must follow the proper process, which varies by agency. You must exhaust all administrative remedies before filing a claim in federal court.

If you are not satisfied with the outcome of the appeal, you can file a FOIA lawsuit in federal court. The onus is on you to prove that you have already filed an appeal and have a legitimate basis for legal action.

If you do not want your case to go to trial, you can attend mediation services, where most claims are settled. This allows an impartial mediator to review your claim and the government’s position before recommending a solution. If mediation is not successful, you can wait for your hearing in federal court.

Tips for Success With Your FOIA Request

It takes time and a commitment to follow through with an FOIA request. Certain things can increase your chances of success. Some helpful tips for a successful FOIA request include:

• Try to build a relationship with the Chief FOIA Officer
• Make as many FOIA contacts as possible
• Take advantage of the FOIA library to ensure that the information you need isn’t already available to the public
• Reach out to a FOIA public liaison throughout the process
• Be persistent but professional, as being overly aggressive can work against you
• Check the status of your FOIA request online frequently
• If a government agency denies your FOIA request, ask why and learn from any mistakes you may have made
• Join FOIA communities to communicate with other information seekers who can offer other tips, assistance, and support

State and federal laws change frequently due to new legislation, higher court rulings, and other means. While we strive to provide the most current information, consult a local civil rights lawyer to confirm the current laws.

An Attorney Can Help You Challenge a FOIA Denial

As a United States citizen, you have certain rights, including the right to access certain government records and documents. As long as you submit your request in accordance with FOIA guidelines, you should be able to view the information you seek.

If the government denies your request or fails to acknowledge it, consider speaking with a local civil rights attorney experienced in handling FOIA requests. They’ll review your request to ensure it meets FOIA criteria and help you get the access you deserve.