FOIA is the chief federal law on openness in government. It provides guidelines for public availability of records of the federal departments and agencies.
Originally passed in 1966 and amended in 1974, 1976, 1978, 1986 and 1996, FOIA’s principal objectives are that:
FOIA requires that records in the possession of a Federal agency be made available for inspection and copying upon request from any person.
Records means any handwritten, typed or printed document (such as memoranda, studies, writings, drafts, letters, transcripts and minutes, and pamphlets), magnetic tapes, sound recordings, paper tapes, maps and other documentary materials (such as punchcards, photographs, slides, motion pictures) made or received by an agency.
Agency means any organizational entity of the Executive Branch of the Federal Government except members of the President’s immediate staff whose sole function is to advise and assist the President. Also included are military departments and government corporations. (Some may be subject by other statute or may voluntary comply.) State and local governments are not covered by the FOIA nor are private organizations.
Possession assumes control and presumes that records exist. The FOIA is a documents and records law, it does not require the Government to create or retain materials or to summarize existing records. In some circumstances reports and documents generated by a government body not subject to the FOIA are transferred to an agency (e.g., a draft audit report of an agency’s activities sent to that agency for comment before transmittal to the Congressional office that requested it). In these circumstances the records may not fall under the FOIA.
Request means an asking for a record regardless of whether the requester specifically refers to the FOIA. Requests must reasonably identify the records sought. A request which fails to so describe the records is defective and may not trigger a FOIA right. Recent rulings suggest that an agency need not conduct an "unreasonably burdensome search." In practice, sweeping FOIA requests are often narrowed down in the course of telephone discussions between the requester and the agency’s FOIA staff.
Person means and individual, corporation, partnership, or public or private organization. "Person" under the FOIA is not limited to citizens of the united States. The act does impose a "standing" concept. Any person may make a request without a showing of relevance or purpose. In theory, the requester’s purpose or motives are generally irrelevant.
For some purposes, however, the FOIA requester’s particular interest may be material. This is true in cases where the requester seeks to persuade the agency to expedite a request by taking it ahead of others. The purpose is also relevant when the requester asks the agency to waive or reduce its published fees for searching and duplication. A particularized interest can also be important when the agency is called upon to make a discretionary decision about whether to release records even though they are covered by an exemption. Finally, the nature and purpose of the request plays an important role in cases arising under the FOIA exemptions allowing agencies to withhold documents which when released, would create an "unwarranted invasion of personal privacy." See 5 U.S.C. 552 (b)(6) and (b)(7)(c). In deciding whether to release such records, the agency must balance the interest in disclosure against the interest of the person whose privacy would be protected.
All government records must be made available unless they fall within one of the Act’s nine specific, narrowly defined exemptions allowing agencies to withhold requested records. One of the basic principles under FOIA is that an exemption is merely an option to deny access, not a prohibition against release.
The agency must mail the requester a determination to grant or deny access within 10 working days (excluding weekends and holidays) after the request is received at the proper office. A reason (an exemption) must be given for any denial and the requester must be informed of his rights to appeal to a higher official in the agency and to judicial review in the event the appeal is not totally successful. Appeals must be acted upon within 20 working days. Extensions are possible under special circumstances. The requester can file suit if time limits are violated, treating delay as denial.
The Act imposes obligations to disclose information. These obligations include the publication in the Federal Register of the agency’s rules and regulations, statements of procedure and a description of its organization. Typically, an agency’s FOIA regulations will prescribe the person, office or place to which a request should be made. Search and duplicating fees authorized by the Act must also be published.
Last Update: October 10, 2008