How to Get Government Information Under the Freedom of Information Act
The Freedom of Information Act (FOIA) is a federal law that allows citizens to request information from federal government agencies that is otherwise not publicly available. In 1996, Congress separated the FOIA from the Administrative Procedure Act, and expanded it so that federal agencies were consistent in the publication of government records. Congress did so because it felt government should be transparent and disclose whatever research was used to reach a decision or create a rule or regulation.
There are limitations to the information you can get under the FOIA, of course. You cannot, for example, file a request to get the nuclear codes. However, all federal agency information is available unless it falls into one of nine exempt categories.
How to File a FOIA Request
Anyone can file a request, and there is no specific form. However, some agencies do have online submission forms or guides that help them to understand the nature of your request.
There are several steps to take prior to filing a request, regardless of whether the agency you are seeking information from has guidelines. First, you should check 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 are concerned about an agency rule or regulation that could affect you or your business, for example, you can most likely learn a great deal about the rule or regulation from published materials. You can find information on the publication of all agency materials by searching the Federal Register. Before issuing a rule, agencies will often issue a "proposed rule" and allow the public to comment or point out problems prior to making it official.
If the information is not publicly available, you should determine which agency will fulfill your request. This can be fairly straightforward in some cases. You can search for federal agencies and submit a request on the FOIA website.
Once you have established that the information is not available, and you know the agency you need the information from, you can file an FOIA request. Tips on drafting the request are below.
Tips for Filing a Request
While it is 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 you requested the information from fulfills your request. Some FOIA requests have been known to take decades. Agencies can also deny claims that are unreasonable, so it helps to tailor your request to the information you really need. Finally, an overly broad request can lead to higher fees.
Here are some tips for filing a successful FOIA request:
- Get specific: Provide the title of the document you are requesting if you know it. If you don't know the title, get as specific as possible to help the agency know how to find the document you are looking for. Do you want the information based on an article you read? Feel free to point to the article. If it's a broader request and not just a single document, make sure to clearly and specifically state the topic. Provide dates or a date range if at all possible.
- Keep it short: Length doesn't help. Nor do you need to justify the reasons for the request. You have a right to any unexempt information, so the issue is getting the document you want, not the reason for 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.
- Be reasonable: An agency can deny a request if it is unreasonable, so put yourself in the shoes of whoever is going to be gathering the documents. How can you make it easy to find? How should they give you the information? After reading your request, is it clear what documents you are looking for? Try to make it clear and easy, and you'll be less likely to be caught with a lengthy wait time, a denial, or tons of unrelated documents to sift through.
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, the IRS, and others, however, will answer common questions or issue guidance about a new rule or regulation on occasion. These are published in opinion letters but are not associated with the FOIA.
There are broad exceptions to the FOIA you should be aware of before filing a request. If your request falls under one or more of nine exemptions, the agency will not release the information. In some cases, the agency can provide relevant documents while keeping any exempt information redacted. The nine exemptions 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. One example would be information on the private financial documents of a company bidding on a government contract.
- Deliberative process: If the request involves a memorandum or opinion between agency employees, the request could be denied. For example, if you are requesting an email that reflects the personal beliefs of an employee or elected official, but those beliefs are not an official position of the agency, then the request could be denied.
- Invasion of privacy: You cannot get the Social Security numbers of federal employees, for example, or other personal identifying information that could harm any individual.
- Protected law enforcement information: You cannot get documents related to an open criminal investigation, for reasons that should be fairly obvious.
- 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. Because it is so rarely cited as a reason to deny a request, however, it isn't entirely clear what this exemption covers in full.
You Can Be Charged for a FOIA Request (But Not Much)
While there's no fee to submit a request, if there are more than 100 pages of documents or it takes longer than two hours for the agency to fulfill the request, that agency can charge for the time spent. If the request is for a commercial purpose, then additional fees can apply.
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. While the amount charged depends on the request, the agency you are seeking documents from will notify you if the amount is over $25.
What Happens If My FOIA Request Is Denied?
If an agency decides that the information requested is exempt, but you disagree, you or your organization can challenge the exemption in federal court. In a FOIA lawsuit, a federal judge will look at the redacted information and determine whether it falls under one of the nine exempt categories.
Want to Challenge a FOIA Denial?
If you believe a legitimate FOIA request has been denied and you would like to challenge it in court, you can search for a local attorney familiar with FOIA requests and other legal matters pertaining to litigation with the federal government.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.