Frequently Asked Questions
Q. What is FOIA?
A. The Freedom of Information Act (FOIA), 5 U.S.C. § 552, is
a federal law which establishes a presumption that governmental information
is available for public review. It allow you to make a written document
request to a federal agency and affords you the legal right to seek
review of any adverse determination regarding your request.
Q. How does one obtain access to public records from the government?
A. The process is simple and the only costs you should incur
initially is the price of a postage stamp. If you desire to review information
in the possession of the federal government, you must mail a written
request to the agency with the desired information
The government is then required to issue a final determination within
20 working days of receipt of your letter. If you are not satisfied
with the response, you have a right to file an administrative
appeal to the head of the agency. If you are still dissatisfied
upon the determination of your appeal, you can seek judicial review
in federal court.
Q. What types of records can be obtained using FOIA?
A. FOIA applies to any "agency records" which are documents that
are (1) either created or obtained by an agency, and (2) under agency
control at the time of the FOIA request. U.S. Dep't of Justice v.
Tax Analysts, 492 U.S. 136, 144-45 (1989). The 1996 amendments to
FOIA explicitly indicate that the term "record" and any other term used
in FOIA in reference to information, should "include any information
that would be an agency record subject to the requirements of this section
when maintained by an agency in any format, including an electronic
format." 5 U.S.C. § 552(f)(2). Examples include: maps, photos, digital
data, emails, handwritten notes, video and audio tapes, etc.
Q. Does a FOIA or public record request need to be in writing?
A. Under FOIA the request must be in writing, but this is not
always true for state public records laws. However, in order to create
the best possible record should you need to seek review of an adverse
determination, it is always good practice to make your public record
requests in writing.
Q. Can I review public records before I request copies?
A. Generally this is possible under both federal and state public
records laws, as long as the agency is not claiming that an exemption
to disclosure applies to the information you seek.
Q. Do I need to pay any costs in order to obtain copies of
A. Frequently, federal and state public records laws mandate
that an agency may recover its actual and reasonable costs of responding
to a document request. However, if disclosure of the requested information
would substantially benefit the public interest, the laws generally
require a waiver or reduction of such fees. Additionally, if the cost
of responding to your request is so small that it falls below a certain
level, most statutes automatically waive assessment of the fees.
Q. What are the time frames for the government to respond to
a request for public records?
A. Generally, under FOIA, the agencies are required to issue
a final determination within 20 working days of receipt of the initial
request or appeal. However, this
can be extended by ten days in "unusual circumstances" such as unforeseeable
backlogs or other processing problems. 5 U.S.C. § 552(a)(6)(B). State
laws have differing time limits, but most apply at a minimum, a "reasonable
Q. What if the government fails to timely respond to a FOIA
public record request?
A. You have been deemed to have exhausted your administrative
remedies, and may immediately seek judicial review in federal court.
5 U.S.C. § 552(a)(6)(C)(i).
Q. What types of documents and public records are exempt from
A. FOIA has nine exemptions to
disclosure which the courts have repeatedly held are to be narrowly
construed. 5 U.S.C. § 552(b) These cover areas like national security,
law enforcement, proprietary information, personal privacy, etc. Most
state public records laws have disclosure exemptions as well, but they
vary from state to state.
Q. What if the government denies a public records request?
A. Under both federal and state public records laws, you have
the right to seek an administrative appeal
of an adverse determination. If you are still dissatisfied, you may
then seek judicial review.
Q. Can I use FOIA to review documents from my state government?
A. No. FOIA only applies to agencies of the federal government
(note this means it also does not apply to Congress or the Judicial
branch). It does not allow you to get information from state or local
governments. However, most state and local governments are covered by
state public records laws. Also, keep in
mind that because state and local governments frequently consult or
collaborate with the federal government on projects, you can often use
FOIA to review information which originated
with non-federal entities but which is now in the possession of federal
Q. Is my group entitled to a fee waiver because the Internal
Revenue Service (IRS) has designated it to be a non-profit group?
A. No, while you group's non-profit status is one of the factors
which may be relevant, the FOIA prohibits a single factor analysis of
fee waiver requests. The question FOIA poses is whether 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." 5 U.S.C. § 552(a)(4)(A)(iii). Consequently, your group's
non-profit status is likely to address the "commercial interest" issue,
but you must also establish that release of the requested materials
will significantly further the public interest. On a related note, just
because you have previously qualified for a fee waiver is no guarantee
that you will do so again. As noted above, each request must satisfy
the statutory public interest test to qualify for a fee
Q. The agency has told me that it cannot find any records responsive
to my request, can I sue?
A. Yes, but be careful. The Act allows for you to appeal both
administratively, and in court, a denial of access to information which
is wrongfully withheld. However, if the records do not exist, the agency
cannot produce them for you. If you have an "inside source" who can
confirm for you that the records do in fact exist-and you have some
sort of proof which you can introduce into evidence in court-you should
consider litigation. However,
absent such documentation, you will have a very difficult time proving
your case in court. As an alternative, consider asking a different agency
(or different branch of the same agency) which may have a copy of the
information you seek.
Q. The agency has not responded to my request within the statutory
deadline of 20 working days, should I sue immediately?
A. Although FOIA allows you to go to court as soon as the agency
misses its response deadline, we recommend against it. Federal litigation
can be a costly undertaking and should not be entered into unnecessarily.
The threat of litigation can sometimes cause the agency to pay attention
to your request without your having to actually go to court. We like
to use the "three strikes and your out" rule: send the agency three
letters of inquiry, spaced over a reasonable amount of time (varies
with the context, but usually a couple of weeks between each) reminding
the agency of their missed deadline and offering to assist the agency's
processing of your request in any way possible. This way, if you do
go to court, you can use the letters as proof that you were reasonable
in your interactions with the agency, and it will increase the chances
that you will be compensated for your costs and attorney fees.