Law & the Media in Texas — FOI Act & Sample Letter

Freedom of Information

The Freedom of Information Act

In 1974 the United States Congress liberally amended the Freedom of Information Act in an effort to remove some of the procedural obstacles set up by bureaucrats.

The original act had been passed in 1966 and went into effect on July 4, 1967. It was 11 years in the making. The revised act was passed by Congress over President Gerald Ford’s veto and went into effect in 1975.

The original law required federal agencies to make their records promptly available to any person. Nine categories were exempt. The law permitted a person who was refused a federal record to seek an injunction.

As amended, the law set time limits for federal agencies to respond to requests for information and complaints filled under the act and forbids excessive fees.

The law also allows federal judges to examine requested documents to decide whether they are properly classified.

Congress in 1996 passed the Electronic Freedom of Information Act to extend federal freedom of information provisions to computerized records. The new law entitles anyone making an FOI request to access database information as well as paper records.

A provision of the 1996 act provides for expedited review when the subject matter of the request is of “compelling urgency to the public.”

Title 5, section 552, U.S. Code.

Among the Internet sites dealing with the Freedom of Information Act is the one at the Freedom of Information Center at the University of Missouri.  The site contains links and sample letters. Anyone may subscribe to the center’s e-mail newsletter, the FOI Advocate.

Your Right to Federal Records may be seen at the Consumer Information Center of the federal government 

A guide to using the Freedom of Information Act is available at www.loc.gov

A reference guide to the Freedom of Information Act is available at www.usdoj.gov.

More About the Act

By Charles N. Davis
Executive Director
Freedom of Information Center
University of Missouri School of Journalism

The Freedom of Information Act (FOIA), 5 U.S.C. § 552, http://www.usdoj.gov/04foia/foiastat.htm makes almost every record possessed by a federal agency a public record unless it is specifically exempted from disclosure or excluded from the act's coverage.

The act provides that any person has a right that is enforceable in federal court to maintain access to records of any federal agency except for those documents which are exempt from disclosure by one of nine specific exemptions.

The FOIA creates the presumption that records in the possession of agencies and departments of the executive branch of the U.S. government are accessible. Before the FOIA became law, the burden was on the requester to establish a right to examine government records. When FOIA was signed into law, the burden of proof shifted from the individual to the government. Those seeking information were no longer required to show a need for information. Instead, the "need to know'" standard was replaced by a "right to know'" doctrine. The government now has the burden to justify a need for secrecy in order to withhold requested information.

While the act does not grant an absolute right to examine government documents, it does establish the right to request records and to receive a response to the request. If a record cannot be released, the requester is entitled to a formal list of the reason for the denial. The requester also has a right to appeal the denial and, if necessary, to challenge it in court.

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.

The FOI Act 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.

An agency's mere "possession" of documents is sometimes not enough to make them subject to disclosure under the FOI Act. In determining if a record is an agency record, courts have looked at whether the agency also created, controlled, used relied upon or filed the documents in its possession.

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. However, 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, either by physically inspecting files or by using computerized indices and retrieval systems. Your request should be made for existing records only.

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.

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 attorneys’ fees and court costs.

But wait! Anyone seeking information from government documents should first try to obtain the documents through informal means. The government may agree to supply all or part of them at your request. Assuming you know with reasonable specificity which records you want and which agency has them, call the public information or press officer at the agency involved, identify yourself as a news reporter, and ask for the information. It might be helpful to offer some explanation of why you want the documents.

If you are turned down, try the agency’s FOI officer, who may tell you how to obtain the documents you want without the necessity of filing a formal FOI Act request. If necessary, use your right to make a formal FOI Act request as leverage in your efforts to persuade the agency to release the information you are seeking informally. Make a point of telling any officials with whom you speak that you intend to make a formal request. Remember that only a written FOI Act request -- not an informal, oral request -- will place the agency under a legal duty to act on your request.

A Sample FOI Letter

FOIA REQUEST

Dear FOI Officer:

Pursuant to the federal Freedom of Information Act, 5 U.S.C. s. 552, I request access to and copies of ______________________________.

I agree to pay reasonable duplication fees for the processing of this request in an amount not to exceed $XX. However, please notify me before you incur any expenses in excess of that amount.

If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the act. I will also expect you to release all segregable portions of otherwise exempt material. I, of course, reserve the right to appeal your decision to withhold any information or to deny a waiver of fees.

I look forward to your reply within 20 business days, as the statute requires.

Thank you for your assistance.

Sincerely,