How to Use the Freedom of Information Act (FOIA) and the Privacy Act
Use FOIA and the Privacy Act to get information from federal departments and agencies.
You can ask for information from the federal government using a Freedom of Information Act (FOIA) request, if the information you seek isn't already available. Parts of the federal government are legally required, with few exceptions, to make their records available to the public as a matter of course. If you're after information about yourself, you can use the Privacy Act.
Here are the basics of FOIA and Privacy Act requests which agencies must comply, which exceptions might apply to your requests, and how to make and appeal an FOIA request.
Who Must Comply With FOIA and the Privacy Act?
The Freedom of Information Act applies to all 15 federal departments (like the Department of Commerce), and 73 federal agencies (such as the Environmental Protection Agency). It does not apply to the President, nor to the courts, Congress, or state and city governments (however, every state has its version of FOIA, as do many cities). FOIA requires that the list of departments and agencies to which it applies be available in print and online.
The Privacy Act of 1974, designed to allow citizens or lawful aliens to obtain records about themselves, applies to federal agencies only.
FOIA requires only that departments and agencies disclose existing information. It does not require the gathering of new information, nor does it require agencies to reconfigure, analyze, or interpret existing records or data.
Exemptions to FOIA
Not every federal record is available for public viewing. The Act contains nine exemptions that allow the government to withhold information. But just because a request may fall within an exemption doesn't mean that the information will necessarily be withheld the government may release the information if it decides that doing so will not cause harm. These exemptions are:
- materials properly classified by the Executive Branch as secret in the interest of national defense or foreign policy
- records solely concerning an agency's internal personnel rules and practices
- information made confidential by other statutes
- privileged or confidential trade secrets and commercial and financial information obtained from an individual
- intra- or interagency memos or letters, with some exceptions
- personnel and medical files of an individual if disclosure would constitute a clearly unwarranted invasion of privacy
- records compiled by law enforcement if disclosure would interfere with enforcement proceedings, interfere with a person's right to a fair trial, invade a person's personal privacy, compromise the identity of a confidential source, disclose investigative techniques, or endanger a person's life or safety
- information contained in reports prepared by or for an agency in charge of regulating or supervising financial institutions, and
- specific information about oil or gas wells.
When the requested information is contained in a report that includes exempt information, agencies and departments are required to segregate the nonexempt information and provide it. They must tell the requester which exemption was applied to the missing information and make a note, if possible, at the place where material was taken out.
Who Can Make a FOIA Request?
Anyone, anywhere, and for any reason can make a FOIA request, including individuals (citizens and foreigners), corporations and other business entities, foreign governments (with some exceptions), and media and nonprofit groups.
How Much Does an FOIA Request Cost?
A FOIA requester will be expected to pay for the request depending on what category the requester falls into.
- News media, educational institutions, and noncommercial scientific organizations. These entities pay only for the cost of the materials used to duplicate the documents they've asked for. In addition, if they can establish that their use of the requested materials "is likely to contribute significantly to public understanding of the operations or activities of the government," and if they can also prove that they have the ability to disseminate the information, they are eligible for a waiver of this fee.
- Public interest groups, nonprofits, and individuals who seek the information for private use. This group will pay document duplication costs and for the time it takes to accomplish the records search.
- Commercial, for-profit groups. These organizations will pay for copying costs, the time it takes to find the records, and for the time the department or agency spends determining that no exemptions apply. They won't be charged for requests that take less than two hours or involve fewer than 100 pages.
If you know the information you're after, you'll need to figure out which department or agency is likely to have it. The government doesn't maintain a central FOIA office; instead, every department and agency has its own FOIA office. The Department of Justice's (DOJ) website (at www.justice.gov/oip/) is the place to start, because it maintains links to all other federal agencies' FOIA websites. Once on these sites, you'll find information on the types of records they maintain. The DOJ also provides a list of FOIA contacts, whom you can phone or email with questions as to whether that agency has the information you seek. If you can't figure out which of two or more agencies has the information, you can send FOIA requests to more than one.
Preparing Your FOIA Request
The federal government does not have a form for use by all FOIA requesters, but many agencies and departments have guidelines for your request (you'll find them on the FOIA section of the agencies' websites). But you can do it yourself, too, or use a free template or sample provided by another organization.
Writing Your Own FOIA Request
To prepare your own request, write a letter using the below guidelines.
- Provide your name, address, and phone number. Include an email address so that the agency can contact you if they have questions about your request.
- State whether you are making an FOIA or a Privacy Act request (or both).
- Give as much information about the records you are requesting as possible, including a document's name and date, if you know them.
- State whether you're requesting the information in a form or format other than paper, such as on a CD-ROM.
- State your willingness to pay any fees, and include an amount you would be willing to pay, as advance authorization.
Once your FOIA request is received by the right agency, it has 20 days in which to tell you whether it will comply with the request. If your request is denied in whole or in part, the agency must give you their reasons within this time. Records that the agency indicates it will provide must be delivered within a reasonable time.
So much for theory. In practice, many agencies cannot make the 20-day deadline. They can extend it in "unusual circumstances," which include the need to find and obtain records from more than one office, having to examine a large amount of records, and needing to consult with another agency before making a decision. If the extension will exceed ten days, the requester has an opportunity to rewrite the request.
Requesters may ask for an expedited response if they can show a "compelling need." For example, if failing to receive the records quickly will endanger a person's life or physical safety, you may ask for urgent processing of your request. A requester's need to inform the public on actual or alleged federal government activity, if the requester is "primarily engaged in disseminating information" (such as a professional journalist), could also support an argument for compelling need.
Appealing an FOIA Rejection
If you're not satisfied with the way that your request was handled, you can file an appeal with the federal Department of Justice. You can appeal the agency's use of an exemption to withhold information, their refusal to grant a fee waiver (or to contest the fee they have asked for), their determination that a record doesn't exist, as well as their decision that the record is not reproducible in the format you've asked for. The agency should advise you of your appeal rights in the letter denying your request for the records or a fee waiver. You can see a sample appeal letter on the FOIAdvocates website.
If your administrative appeal is not successful, you can appeal in federal court. For most people, this means hiring a lawyer, because the issues can be quite complex. The government must prove that withholding the information was justified. In most cases, the government will prevail. If you wish to hire a lawyer to help you with your FOIA request or appeal, go to the Government & Environmental Lawyers section of Nolo's Lawyer Directory to find a lawyer in your geographical area.