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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 public records?
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 time" standard.

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 disclosure?
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 government.

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 waiver.

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.

 
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