Reference Guide Making a FOIA Request—Requirements for Agency Response—FOIA Exemptions Administrative Appeal Procedure—Sample Letter

REQUESTABLE RECORDS UNDER FOIA

The FOIA requires agencies to publish or make available for public inspection several types of records. This includes:

descriptions of agency organization and office addresses
statements of the general course and method of agency operation
rules of procedure and descriptions of forms
substantive rules of general applicability and general policy statements
final opinions made in the adjudication of cases; and
administrative staff manuals that affect the public.

This information must either be published in the Federal Register or made available for inspection and copying without the formality of a FOIA request. All other "records" of a federal agency may be requested under the FOIA. However, the FOIA does not define "record." Any item containing information that is in the possession and control of an agency is usually considered to be an agency record under the FOIA. Personal notes of agency employees may not be agency records.

The form in which a record is maintained by an agency does not affect its availability. A request may seek a printed or typed document, tape recording, map, photograph, computer printout, computer tape or disk, or a similar item.

Not all records that can be requested must be disclosed. Information that is exempt from disclosure is described below in the section titled "Reasons Access May Be Denied Under the FOIA."

The FOIA carefully provides that a requestor may ask for records rather than information. This means that an agency is only required to look for an existing record or document in response to a FOIA request. An agency is not obliged to create a new record to comply with a request. An agency is not required to collect information it does not have. Nor must an agency do research or analyze data for a requestor.

Requestors must ask for existing records. The law requires that each request must reasonably describe the records being sought. This means that a request must be specific enough to permit a professional employee of the agency who is familiar with the subject matter to locate the record in a reasonable period of time.

Many people include telephone numbers with their requests. Some questions about the scope of a request can be resolved quickly when an agency employee and the requestor talk. This is an efficient way to resolve questions that arise during the processing of FOIA requests.

MAKING A FOIA REQUEST

The first step in making a request under the FOIA is to identify the agency that has the records. A FOIA request must be addressed to a specific agency. There is no central government records office that services FOIA requests.

Often, a requestor knows beforehand which agency has the desired records. If not, a requestor can consult a government directory such as the United States Government Manual. This manual has a complete list of all federal agencies, a description of agency functions, and the address of each agency. A requestor who is uncertain about which agency has the records that are needed can make FOIA requests at more than one agency.

Agencies require that FOIA requests be in writing. Letters requesting records under the FOIA can be short and simple. No one needs a lawyer to make a FOIA request.

The request letter should be addressed to the agency's FOIA officer or to the head of the agency. The envelope containing the written request should be marked "Freedom of Information Act Request" in the bottom left-hand corner.

There are three basic elements to a FOIA request letter. First, the letter should state that the request is being made under the Freedom of Information Act. Second, the request should identify the records that are being sought as specifically as possible. Third, the name and address of the requestor must be included.

Under the 1986 amendments to the FOIA, fees chargeable vary with the status or purpose of the requestor. As a result, a requestor may have to provide additional information to permit the agency to determine the appropriate fees. Different fees can be charged to commercial users, representatives of the news media, educational or non-commercial scientific institutions, and individuals. The next section explains the fee structure in more detail.

There are several optional items that are often included in a FOIA request. The first is the telephone number of the requestor. This permits an agency employee processing a request to speak with the requestor if necessary.

A second optional item is a limitation on the fees that the requestor is willing to pay. It is common for a requestor to ask to be notified in advance if the charges will exceed a fixed amount. This allows the requestor to modify or withdraw a request if the cost is too high. Also, by stating a willingness to pay a set amount of fees in the original request letter, a requestor may avoid the necessity of additional correspondence and delay.

A third optional item sometimes included in a FOIA request is a request for a waiver or reduction of fees. The 1986 amendments to the FOIA changed the rules for fee waivers. Fees must be waived or reduced if 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 requestor. Decisions about granting fee waivers are separate from and different than decisions about the amount of fees that can be charged to a requestor.

A requestor should keep a copy of the request letter and related correspondence until the request has been finally resolved.

REQUIREMENTS FOR AGENCY RESPONSES

Each agency is required to determine within 20 days (excluding Saturdays, Sundays, and legal holidays) after the receipt of a request whether to comply with the request. The actual disclosure of documents is required to follow promptly thereafter. If a request is denied in whole or in part, the agency must tell the requestor the reasons for the denial. The agency must also tell the requestor that there is a right to appeal any adverse determination to the head of the agency or his or her designee.

The FOIA permits an agency to extend the time limits up to 10 days in unusual circumstances. These circumstances include the need to collect records from remote locations, review large numbers of records, and consult with other agencies. The agency is supposed to notify the requestor whenever an extension is invoked.

The statutory time limits for responses are not always met. An agency sometimes receives an unexpectedly large number of FOIA requests at one time and is unable to meet the deadlines. Some agencies assign inadequate resources to FOIA offices. Congress does not condone the failure of any agency to meet the law's time limits. However, as a practical matter, there is little that can be done about it. The courts have been reluctant to provide relief solely because the FOIA's time limits have not been met.

The best advice to requestors is to be patient. The law allows a requestor to consider that his or her request has been denied if it has not been decided within the time limits. This permits the requestor to file an administrative appeal or file a lawsuit in federal district court. However, this is not always the best course of action. The filing of an administrative or judicial appeal will not necessarily result in any faster processing of the request.

Each agency generally processes requests in the order of receipt. Some agencies will expedite the processing of urgent requests. Anyone with a pressing need for records should consult with the agency FOIA officer about how to ask for expedited treatment of requests.

FOIA EXEMPTIONS

The 1986 amendments to the FOIA gave limited authority to agencies to respond to a request without confirming the existence of the requested records. Ordinarily, any proper request must receive an answer stating whether there is any responsive information, even if the requested information is exempt from disclosure.

In some narrow circumstances, acknowledgment of the existence of a record can produce consequences similar to those resulting from disclosure of the record itself. In order to avoid this type of problem, the 1986 amendments established three "record exemptions."

The exemptions allow an agency to treat certain exempt records as if the records were not subject to the FOIA. An agency is not required to confirm the existence of three specific categories of records. If these records are requested, the agency may respond that there are no disclosable records responsive to the request. However, these exemptions do not broaden the authority of any agency to withhold documents from the public. The exemptions are only applicable to information that is otherwise exempt from disclosure.

The first exemption may be used when a request seeks information that is exempt because disclosure could reasonably be expected to interfere with a current law enforcement investigation (Exemption 7a). There are three specific prerequisites for the application of this exemption. First, the investigation in question must involve a possible violation of criminal law. Second, there must be reason to believe that the subject of the investigation is not already aware that the investigation is under way. Third, disclosure of the existence of the records as distinguished from the contents of the records could reasonably be expected to interfere with enforcement proceedings.

When all of these conditions exist, an agency may respond to a FOIA request for investigatory records as if the records are not subject to the requirements of the FOIA. The agency's response does not have to reveal that it is conducting an investigation.

The second exemption applies to informant records maintained by a criminal law enforcement agency under the informant's name or personal identifier. The agency is not required to confirm the existence of these records unless the informant's status has been officially confirmed. This exemption helps agencies protect the identity of confidential informants. Information that might identify informants has always been exempt under the FOIA.

The third exemption only applies to records maintained by the Federal Bureau of Investigation that pertain to foreign intelligence, counterintelligence, or international terrorism. When the existence of these types of records is classified, the FBI may treat the records as not subject to the requirements of FOIA.

This exemption does not apply to all classified records on the specific subjects. It only applies when the records are classified and when the existence of the records is also classified. The underlying records must be classified before the exemption is relevant, so agencies have no new substantive withholding authority.

In enacting these exemptions, congressional sponsors stated that it was their intent that agencies must inform FOIA requestors that these exemptions are available for agency use. Requestors who believe that records were improperly withheld because of the exemptions can seek judicial review.

ADMINISTRATIVE APPEAL PROCEDURES

Whenever a FOIA request is denied, the agency must inform the requestor of the reasons for the denial and the requestor's right to appeal the denial to the head of the agency. A requestor may appeal the denial of a request for a document or for a fee waiver. A requestor may contest the type or amount of fees that were charged. A requestor may appeal any other type of adverse determination, including a rejection of a request for failure to describe adequately the documents being requested or a response indicating that no requested records were located. A requestor can also appeal because the agency failed to conduct an adequate search for the documents that were requested.

A person whose request was granted in part and denied in part may appeal the part that was denied. If an agency has agreed to disclose some but not all requested documents, the filing of an appeal does not affect the release of the documents that are disclosable. There is no risk to the requestor in filing an appeal.

The appeal to the head of the agency is a simple administrative appeal. A lawyer can be helpful, but no one needs a lawyer to file an appeal. Anyone who can write a letter can file an appeal. Appeals to the head of the agency often result in the disclosure of some records that had been withheld. A requestor who is not convinced that the agency's initial decision is correct should appeal. There is no charge for filing an administrative appeal.

An appeal is filed by sending a letter to the Freedom of Information Officer, EPA Headquarters. The letter must identify the FOIA request that is being appealed. The envelope containing the letter of appeal should be marked in the lower left hand corner with the words "Freedom of Information Act Appeal."

Agencies assign a number to all FOIA requests that are received, Request Identification Number (RIN). The RIN number should be included in the appeal letter, along with the name and address of the requestor. You may include a copy of the agency's initial decision letter as part of the appeal, but this is not required. It can also be helpful for the requestor to include a telephone number in the appeal letter and identify specifically the withheld records concerning your appeal.

A requestor may include any facts or any arguments supporting the case for reversing the initial decision. However, an appeal letter does not have to contain any arguments at all. It is sufficient to state that the agency's initial decision is being appealed.

The FOIA requires that an appeal of a FOIA denial be mailed to the EPA FOI Officer within 30 calendar days after the initial denial.

An agency is required to make a decision on an appeal within 20 days (excluding Saturdays, Sundays, and legal holidays). It is possible for an agency to extend the time limits by an additional 10 days. Once the time period has elapsed, a requestor may consider that the appeal has been denied and may proceed with a judicial appeal. However, unless there is an urgent need for records, this may not be the best course of action. The courts are not sympathetic to appeals based solely on an agency's failure to comply with the FOIA's time limits.

Sample Letter

Dianna Whitaker
Acting Freedom of Information Officer
U.S. Environmental Protection Agency
901 N. 5th St.
Kansas City, KS 66101
Dear Ms. Whitaker:

Under the Freedom of Information Act, I request that a copy of the following document(s): [identify the documents or information as specifically as possible].

I am willing to pay fees for this request up to a maximum of $__. If you estimate that the fees will exceed this limit, please inform me first.

Please contact me at (__)___-____.

Sincerely,

Name

Address

City, State, Zip Code

Telephone number:

Fax number:

E-mail address: