Editorial · July 26, 2016
FOIA Request Guide: How to Ask a Federal Agency
This FOIA request guide comes down to one habit: ask for specific records, in writing, from the right office. Generally, any person can ask, citizen or not. No special form is needed. The FOIA Improvement Act of 2016 became law on June 30, 2016. It applies to requests made after that date.
What you can ask for, and who to ask
The Freedom of Information Act, or FOIA, was signed into law on July 4, 1966. It gives the public the right to ask any federal agency for its records. The agency must release them unless one of nine exemptions applies. Exemption 4 covers trade secrets and commercial or financial information that is confidential or privileged.
You can ask for any agency record and name the format you want, such as paper or electronic. The law does not make an agency create a new record, do research, analyze data or answer questions. So ask for the document itself.
Check first whether the records are already publicly available. If not, write to the FOIA office of the agency that you think holds them. FOIA.gov lists how to make a request to each agency. It says a request addressed to the right office gets the quickest response.
Write a request an agency can act on
FOIA.gov says a request must be in writing and reasonably describe the records you want. Most agencies now accept requests electronically, including by web form, e-mail or fax. The statute also ties an agency's duty to requests that follow its published rules on time, place, fees and procedures. So check the agency's FOIA page.
Aim for enough detail that an agency employee could find the records. Name the kind of record, the office or program, the people involved, the subject and a date range. For example, a request for "everything about my company" is too wide. "The last inspection report for my warehouse" is clear. You may always state in your letter the most you will pay in fees.
Narrow it to save time and money
FOIA.gov says a simple request can be processed faster than a complex one. Simple requests are usually targeted and seek fewer pages. Complex ones usually seek a high volume of material or need extra steps. So limit yours to one program and one span of time. Ask for the final report instead of every draft.
There is no fee to file. A typical requester pays nothing for the first two hours of search or the first 100 pages of copies. For a request for commercial use, the statute allows charges for search, copying and review. The free hours and pages do not apply. FOIA.gov says an agency that estimates fees above $25 will tell you in writing. The agency will also offer a chance to narrow the request.
For requests made after June 30, 2016, an agency that misses its deadline, even an extended one, generally cannot charge search fees. One exception covers a request that needs more than 5,000 pages when unusual circumstances apply. The agency can still charge if it gave timely written notice. It must also have discussed narrowing the request with you, or made at least three good-faith attempts to discuss it.
What happens after you send it
The agency generally has 20 business days after receiving your request to decide whether to release records and to tell you. Weekends and legal public holidays do not count. If unusual circumstances apply, it can add up to 10 business days by written notice. The statute lists three: records held at separate sites, a very large number of records, and a need to consult another agency or two or more of its own offices with a substantial interest. When the agency extends the deadline and still cannot finish in time, it must offer you a chance to narrow the request or set a new schedule.
For a request that will take longer than 10 days, the agency must give you a tracking number and a way to check its status. FOIA.gov says the wait depends on how complex your request is and how many are ahead of it.
The reply is in writing. It says whether records were found and includes what can be released, with parts blacked out if needed. If anything is withheld, the agency names the exemption it used. For requests made after June 30, 2016, an agency may withhold information only if it reasonably foresees that release would harm an interest an exemption protects, or if another law bars release. When a request may require release of confidential commercial information, a 1987 executive order tells agencies to notify whoever submitted it and let them object, with some exceptions.
If the answer is no, appeal
Before you appeal, you may want to talk to the FOIA professional on your request or the agency's FOIA Public Liaison. The Liaison helps resolve disputes. FOIA.gov says a simple discussion often settles the issue. If it does not, you typically just send a letter or e-mail to the agency's appeal authority. Say that you are appealing. There is no fee. The agency generally has 20 business days to decide the appeal.
For requests made after June 30, 2016, a denial letter must give you at least 90 days after the denial to appeal. It must also offer the Public Liaison's help and tell you about the Office of Government Information Services, or OGIS. OGIS is part of the National Archives and offers mediation as an alternative to a lawsuit.
If an agency upholds a denial on appeal, even in part, it must tell you about court review. The statute lets you file in federal district court. You may file where you live, where your business has its principal place of business, where the records are, or in the District of Columbia. If an agency misses a time limit, the law treats you as having completed the agency's appeal steps. In court, the burden is on the agency to justify its action.