Your right to federal records

by Lucy Dalglish

Every significant aspect of life in the United States is affected by the federal government. But it wasn’t until 1966 with the passage of the federal Freedom of Information Act that the public was able to receive information about the government’s activities. By making all records of federal government agencies presumptively available to you upon request, this Act guarantees your right to inspect a storehouse of government documents.

Journalists and scholars, in particular, have used the FOI Act to investigate a variety of news stories and historical events. Their revelations, based on documents they received, have often led to change where change was needed. In 1996, for example, when a ValuJet crash in the Everglades killed 110 persons, the Cleveland Plain Dealer had documents in hand showing what the government knew about safety problems at the airline. It had just completed a series of articles on safety problems at small airlines, a series which relied significantly upon records received through FOI requests to the Federal Aviation Administration.

In 1995, the Dayton (Ohio) Daily News used the Act to learn that women in the military endured cavalier responses to charges of rape brought against enlisted men and officers, many of whom had faced multiple charges. In 1993, that newspaper perused Occupational Safety and Health Administration databases obtained through the Act to identify the most dangerous work places in the country.

Other reporters have used the Act to identify wasteful government spending. In the early 1990s a request by an Associated Press reporter led to a story about a little known $200 million federal program to advertise U.S. food and drink overseas. Monies were going to companies such as McDonald’s, Burger King, Pillsbury, Dole, M&MMars and Jim Beam, all of whom had substantial advertising budgets of their own to draw on.

The Act has been used for myriad other purposes such as to uncover important information about the Rosenberg spy trials, FBI harassment of civil rights leaders, surveillance of authors, international smuggling operations, environmental impact studies, the salaries of public employees, school district compliance with anti-discrimination laws, and sanitary conditions in food processing plants. Reporters have successfully used the FOI Act to learn about crimes committed in the United States by those with diplomatic immunity, cost overruns of defense contractors, and terrorist activities, including a plan to assassinate Menachem Begin during a trip to this country.

How It Works

The federal FOI Act, 5 U.S.C. § 552, gives you access to all records of all federal agencies in the executive branch, unless those records fall within one of nine categories of exempt information that agencies are permitted (but generally not required) to withhold. Even if requested information arguably or technically falls within an exemption, the U.S. Attorney General has ordered that agencies should not invoke that exemption unless they can point to a “foreseeable harm” that will occur as a result of the disclosure.

You may try to make an informal telephone request to an agency to obtain documents. However, agencies frequently require that requests be made in writing. In fact, you establish your legal rights under the FOI Act only by filing a written request. Once you have filed an FOI Act request, the burden is on the government to release the documents promptly or to show that they are covered by one of the Act’s exemptions. At all agencies, a designated FOI officer is responsible for responding to FOI Act requests.

According to the statute, the agency must respond to your written FOI Act request within 20 working days; however, as a practical matter, agencies frequently extend the time for response. A “response” to a request is a grant or denial of the records sought. A simple acknowledgment by an agency that it has received your request does not count as the response to which you are entitled under the FOI Act.

If you have an urgent need for the information, you should ask for “expedited review.” You are entitled to expedited review if health and safety are at issue or if you are a person primarily engaged in disseminating information and there is an urgency to inform the public about an actual or alleged governmental activity. Agencies may also decide that they will grant expedited review for additional categories of records. For instance, the Justice Department grants expedited review for requests concerning issues of government integrity that have already become the object of widespread national media interest.

An agency may charge you the reasonable costs of providing the documents; however, you may be entitled to reduced fees or fee waivers. For instance, agencies cannot charge representatives of the news media for costs of searching for records.

If an agency refuses to disclose all or part of the information, or does not respond within 20 working days to a written FOI Act request, you may appeal to the agency’s FOI Appeals Officer. You may avoid the agency appeal and go directly to court only if the agency does not respond within the required time period. An appropriate agency response is a grant or denial of the requested information. The agency may also appropriately respond that it is extending its time limit for granting or denying the information by up to 10 additional working days if voluminous records must be searched, records must be retrieved from various offices or several agencies must be consulted.

If you file an administrative appeal that is denied or not responded to within 20 working days, you can then file a lawsuit in a federal court convenient to you. If you can demonstrate the need for prompt consideration, you may ask that the court give expeditious consideration to your case. If you win in court, a judge will order the agency to release the records and may award you attorney’s fees and court costs.

The FOI Act applies to every “agency,” “department,” “regulatory commission,” “government controlled corporation,” and “other establishment” in the executive branch of the federal government. This includes Cabinet offices, such as the Departments of Defense, State, Treasury, Interior, Justice (including the Federal Bureau of Investigation, the Immigration and Naturalization Service and the Bureau of Prisons); independent regulatory agencies and commissions, such as the Federal Trade Commission, Federal Communications Commission and the Consumer Product Safety Commission; “government controlled” corporations, such as the Postal Service and Amtrak; and presidential commissions. The FOI Act also applies to the Executive Office of the President and the Office of Management and Budget, but not to the President or his immediate staff.

The Act does not apply to Congress, the federal courts, private corporations or federally funded state agencies. However, documents generated by these groups and filed with executive branch agencies of the federal government become subject to disclosure under the Act, just as if they were documents created by the agencies. Congressional agencies such as the Library of Congress and the General Accounting Office follow their own records disclosure rules and procedures patterned after the FOI Act.

The FOI Act also does not apply to state or local governments. All states have their own “open records” laws which permit access to state and local records. (Information on how to use these state laws is available from The FOI Service Center of the Reporters Committee for Freedom of the Press. The Reporters Committee publishes “Tapping Officials Secrets,” a compendium of open government laws for each state and the District of Columbia.) If documents of a state or local government are submitted to a federal agency, they become subject to the federal FOI Act. This would occur, for example, when a state or local agency that receives federal funds through the Office of Justice Programs submits reports to the agency accounting for how the funds were spent.

The FOI Act is very broad. It covers all “records” in the possession or control of a federal agency. The term “records” is defined expansively to include all types of documentary information, such as papers, reports, letters, films, computer tapes, photographs and sound recordings. But physical objects which cannot be reproduced, such as the rifle used to assassinate John F. Kennedy, are generally not considered “records” under the Act. If in doubt as to whether the material you want is a “record,” assume it is and request it.

When requesting records, you must “reasonably describe” the material you want. This does not mean you need to know an exact document or docket number, but your request should be specific enough so that a government employee familiar with the subject area can locate the records with a reasonable amount of effort. Your request should be made for existing records only. The FOI Act cannot be used as a way to compel an agency to answer specific questions you might have, and agencies will be very quick to tell you that they do not have to “create” records under the FOI Act.

However, if it seems more practical for both you and the agency, you may offer to accept the information you seek in a list or other abbreviated response rather than in copies of source documents.

Most people think of the FOI Act in terms of requesters, people who write to agencies seeking information. But the Act goes further to make information public. It mandates publication requirements and reading room requirements. Newer legislation requires that those materials be available electronically and that the government take other steps to make information easily available to you.

An FOI Act request may be made by “any person.” This means that all U.S. citizens, as well as foreign nationals, can use the Act. A request can also be made in the name of a corporation, partnership, or other entity, such as a public interest group or news organization. Members of the news media have no more and no fewer rights to information under the Act than other requesters. To obtain information, you do not need to tell the agency why you are making a request. However, advising the FOI officer that you are a journalist, author or researcher and intend to publish some or all of the requested information may encourage prompt consideration of your request and entitle you to fee benefits. If the informal approach does not succeed, exercise your rights under the FOI Act to make a formal request. To preserve all your rights under the Act, your formal request must be made in writing. Any reporter, author, or researcher should be able to write his or her own request letter.

Each federal agency subject to the FOI Act has a designated FOI Act officer responsible for handling information requests. Large cabinet agencies, such as Defense and Agriculture, have separate FOI officers for their various subdivisions and regional offices. If you are sure which subdivision of an agency has the records you want, send your request letter directly to that FOI officer. If you are uncertain, send your request to the agency or departmental FOI officer, who will then forward it to the appropriate division. You will save time by calling the agency first to determine where the records you seek are located and where you should direct your request.

Sometimes it is advisable to send separate requests to agency headquarters and to field offices that may have records you want. The FBI, for example, searches its field offices for records only when requests are made directly to those offices; a request to the Bureau in Washington will lead only to a search of its central files. If you are unsure which federal agency or office has the records you want, send the same request to several agencies or offices.

Address your request letter to the FOI officer at the appropriate agency or subdivision. Most agencies will accept a request by hand delivery, mail or fax. If you mail your request, mark the outside of the envelope “FOI Act Request.” If you send the request by registered mail with return receipt requested, you may be able to track the request if you should later need to do so. Keeping a photocopy of your letter and your receipt will help you later if you need to make an appeal.

Generally a request letter should contain the elements included in the Sample FOI Act Request Letter, which can be found at the Reporters Committee Web site (www.rcfp.org). However, any written request is covered by the FOI Act. The Reporters Committee publication, “How to Use the Federal FOI Act,” is on the Web site and includes an automatic request letter generator, a sample appeal letter and addresses of federal agencies. In most cases, you should be able to prepare a simple request letter by yourself, but if you need assistance, you may call The FOI Service Center at 1-800-336- 4243.

Lucy Dalglish is the Executive Director of the Reporters Committee for Freedom of the Press.