Freedom of Information Act Help Center

A Quick 'N Dirty Guide to Filing a
Freedom of Information Act Request

Using the Freedom of Information Act is actually quite simple, once you get the hang of it. But many currently available FOIA request guides are complicated and confusing to neophytes. To make things easier for our users, ParaScope offers this stripped-down, quick 'n dirty guide to filing your FOIA request. For more detailed information, consult the FOIA Tips and Tricks.

I. FOIA Basics

Any person or corporation can make a FOIA request.

A FOIA request must be made in writing in order for it to have legal standing.

A request can be made to any Executive branch agency. Congress is not subject to the FOIA. An agency's rules for processing requests can be found in the Code of Federal Regulations.

Under the FOIA, a request must be "reasonably described" for an agency to process the request.

II. THE REQUEST LETTER

1) Request language.

The only required language is that the Act be identified in your request letter. For example, open your letter with something along the lines of "Under the Freedom of Information Act, I request..." You can use ParaScope's FOIA Request-O-Matic to quickly and easily compose your FOIA request.

You should request specific information on your subject whenever you are able. Possible subject types include:

a) Requests for specified documents -- for example, "a CIA intelligence report produced in early 1996 concerning China's shipment of nuclear technology to Pakistan, which was reported on in the Washington Times, dated..."

b) Requests related to an event -- for example, all documents concerning a meeting between Secretary of State (name) and Foreign Minister (name) in (location) on (date)".

c) Requests about an individual -- this may be processed solely as a Privacy Act request or as both; both processes concern the same system of records. However, the Privacy Act restricts an agency from releasing personal information about you to other persons, agencies or corporations).

-- If the person is an American citizen, that person's authorization will be required before documents will be released to a you or a third party. If the person is deceased, provide the agency a copy of a death notice or certificate.

-- If YOU are the individual -- for example, if you were requesting your FBI records -- you must have your request notarized by a notary public to substantiate your authenticity for the agency.

-- If the request concerns a person of another nationality, the Privacy Act does not apply; you need not obtain that person's concurrence.

2) In your letter, advise the agency that, while the information you request may be exempt from release, the agency has the discretion to release all of the information sought; that it is required by the FOIA to release all segregable information found in the documents; and that it should explain the exemptions used to withhold any information in order that you can appeal that withholding.

3) Fees.

Fees may be charged for the search, review and copying of records depending on your status as a requester. Basically, you are either a commercial requester and non-commercial requester, so be sure to identify yourself. However, the FOIA treats each requester anonymously, so you do not need to identify your reasons for requesting the information.

--Commercial requesters, such as law firms and corporations, which use the information in a profitmaking capacity, are charged full fees.

--Non-commercial requesters, typically in the fields of "education" or "news media", receive free search and review and are charged only for copying costs beyond 100 pages. "Other" non-commercial requesters receive 2 hours of search and review free and are charged for copying costs beyond 100 pages.

You can help an agency determine your fee status by identifying your business; your school and research goal; your media organization and project; or your own personal interests (for example, free-lance author; relative of request subject).

You can request a fee waiver. Under the FOIA reforms of 1986, all fees can be waived if the release of the information would contribute significantly the public understanding of the "operations and activities" of the government. If not granted, ask that the agency advise you of the estimated costs of your request.

III. RESPONSES

1) Under the FOIA, an agency must respond to your request in a substantive way within 10 working days.

--an acknowledgment of receipt of your request, a fee determination notice, or a request for an extension of time to process your request, however, are not substantive responses, whether by letter or telephone.

--telephone conversations can assist the processing of your request. An agency may ask for clarification or additional information; after discussion, you may amend or addend your request; or an agency may ask you to forego review of information that, while located during your search, is not responsive to your request.

2) a substantive response is when a request is fulfilled, denied in part or denied in full. If your request is complex, you may receive more than one substantive response. An agency can:

--release documents in their entirety;

--deny documents in part;

--deny documents in their entirety.

--"coordinate" documents to another agency for their review and direct reply to you. The agency that originates a document must review it for release, regardless of which agency has a copy.

An agency may respond with any combination of the above. An agency may also advise you that "no documents were located responsive to your request." Any such determination can be appealed.

For an agency to lawfully deny information under FOIA , that information must be denied pursuant to the nine exemptions allowed in the Act. Again, an agency is not required by the FOIA to deny the information, but is allowed to. Briefly, the nine types of information an agency may exempt from release are:

1) national security information classified pursuant to an executive order;

2) information concerning the internal rules and practices of an agency;

3) information which is specifically exempted by another statute (e.g., Atomic Energy Act, Export Administration Act);

4) privileged trade secrets and commercial or financial information;

5) inter-or intra-agency memoranda;

6) information the release of which would cause a "clearly unwarranted invasion of personal privacy";

7) law enforcement records if release would a) impair enforcement proceedings; b) impair due process; c) cause an unwarranted invasion of personal privacy; d) identify a confidential source or information provided in confidence by the source; e) disclose enforcement techniques; and f) endanger an individual;

8) information concerning regulation and supervision of financial institutions;

9) geological and geophysical data.

IV. APPEALS

You can appeal an agency's procedural or substantive determinations. Appeal periods and rules vary by agency and are published in the Code of Federal Regulations. However , in their decision letter, an agency must advise you of your appeal rights and procedures. Essentially, you are required only to state that, "under the FOIA, I appeal" (a no documents response; an exemption withholding; etc.) You can use ParaScope's FOIA Appeal-O-Matic to quickly and easily compose a FOIA appeal letter.

1) Delays. If the agency does not respond substantively within the statutory 10 working day time frame, you can appeal their delay. However, unless you can make a strong public interest argument, e.g., an approaching court date, an appeal may not succeed in expediting the processing of your request.

2) Fees. If you are dissatisfied with an agency's classification of your fee status, you can appeal the decision. It is important to substantiate your case: if you are an educational researcher, identify your school and explain that the research is in support of your thesis, for example.

3) Additional searches. If the agency did not locate any documents responsive to your request, or if they located some documents but you have reason to believe more documents exist, you may appeal their decision and ask for an additional search. It is always beneficial to provide additional information to aid the another search. For example, if a former official has said that documents were located in his office rather than in the central files, or if another previously released document provides information about your topic, include these in your submission. At your request, agencies may, as a matter of discretion, undertake a new search without voiding your appeal rights.

4) Substantive appeals. If an agency withholds documents in part or in their entirety, you may appeal their determination. It is always to your benefit to appeal; an agency will often release at least some additional material. More importantly, at the appellate level, documents are reviewed by higher-level officials. who often have greater expertise in the issue. If you can make a substantive argument for greater release, you bolster your chances of winning the appeal. For example, substantiate that another agency has released the documents without harm, or that the documents are already in the public realm (have been published in the news media), or that the documents no longer have sensitivity given their age or given a change in the political climate.

Upon receipt of your appeal, an agency has 20 working days to decide your appeal. At this stage, as with an initial review, an agency may release all of the documents at issue, portions of the documents, or affirm the agency's previous determination and release nothing further.

V. JUDICIAL REVIEW

If you've received no decision at 20 working days, or if you are unsatisfied with an agency's appeal decision, you may seek judicial review of the case in federal court. As a final check on agency decisions, the FOIA allows a requester to file this "complaint" against an agency or agencies in your local federal district court or the federal district court of the District of Columbia. While your complaint may be against a particular agency, the Justice Department has responsibility for defending agency FOIA lawsuits.

1) Attorneys. Unlike other issues of law, you need not be attorney to bring a FOIA lawsuit in federal court. However, if your case is complex, you may want to retain an attorney who has experience in FOIA law. If you can't afford counsel, there are still options available: your local ACLU branch, the Public Citizen interest group, your local Bar Association chapter, or other local attorneys may provide assistance to you or arrange pro bono representation for you.

2) The Complaint. Your complaint should itemize the agency's withholdings and explain your reasons for seeking adjudication. After you file your complaint with the court, the government will respond. In their reply, the government will respond to each point. In very rare cases, the government may decide not to contest your case and may release the documents to you. Following the government's response, you will want to request that the government prepare a Vaughn index, which describes the withheld documents and the rationale for their withholding. At this juncture also, in reviewing documents for the Vaughn index, the government may release some or all of the documents. If you are unsatisfied with the index, you may request a more forthcoming index. This process continues until you are satisfied, you agree to settle with the government, or the judge agrees with the government's position.

3) Court Victory. While you rarely win your FOIA lawsuit on its merits, you almost always obtain the release of additional information.

4) Fees. There is a nominal filing fee for bringing a FOIA lawsuit in federal court. Upon settlement of the case, the judge may award attorney's fees if you have "substantially prevailed" over the government.

(c) Copyright 1996 ParaScope, Inc.

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