Time spent: seconds

PURSUE | JUSTICE | VOTE | PEACE | DEFEND | RIGHTS | LEARN | LAW

No. 97-72

October 20, 1997

Corporate Counsel's Guide To FOIA

Public Confusion Has Accompanied Access To Records

The Freedom of Information Act, 5 U.S.C. Section 552 (FOIA), allows members of the public to obtain documents and other information-bearing materials, such as photographs, from agencies of the federal government. FOIA was enacted to permit public access to official information previously shielded from the public's view. The records available cover the broad spectrum of topics addressed by various government agencies, and range from environmental data to consumer product safety materials to tax-related information.

Corporate counsel may find FOIA requests to be a particularly useful tool in connection with litigation or investigations, although the government may withhold certain materials as privileged or exempt. The statute has given rise to hundreds of decisions interpreting the parameters and procedures for information requests. An applicant's likelihood of obtaining a timely, useful reply to a FOIA request often depends upon whether the request is composed correctly. The art of developing requests under the statute involves not only knowing what and when to ask, but also understanding the limitations of a FOIA request.

FOIA Applies To Federal "Agency Records"

FOIA applies to federal agencies, which the statute defines as departments and establishments in the executive branch of government (e.g, the Department of Commerce or the Department of Defense). Also subject to the statute are the Executive Office of the President and independent regulatory agencies (e.g., the Environmental Protection Agency). FOIA does not extend to the federal courts or Congress.

Congress passed FOIA with the intention of making "agency records" available to the public. The statute does not specifically define that term, but courts have generally found agency records to include materials that are (i) created or obtained by the federal agency, and (ii) in the agency's possession or control at the time of the request. United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 144-45 (1989). The term "record" encompasses a range of documents and materials, including information stored electronically. At least one federal court has distinguished "records" from "objects," holding that items associated with the assassination of President Kennedy, such as the rifle belonging to Lee Harvey Oswald and various bullet fragments, did not qualify as records under FOIA. Nichols v. United States, 325 F. Supp. 130 (D. Kan. 1971). FOIA does not require federal agencies to manufacture or assemble previously nonexistent records in response to a request. Nor do agencies have any duty to retrieve documents not within their control in order to respond to a FOIA request.

Requests Should Be Drafted Carefully

To maximize the chances for obtaining desired records successfully, each FOIA request should contain the following components.

First, counsel should identify the agency or agencies most likely to have the documents. If it is not obvious which agency has the records, counsel should consult the United States Government Manual, which describes each agency's function. Alternatively, the requesting party could call the public affairs or FOIA offices at the likely agencies and ask each agency if it maintains the information being sought. Once the correct agency has been identified, the request for records should be directed to that agency's FOIA office. To locate that office, counsel may contact the agency or consult the agency's FOIA regulations in the Code of Federal Regulations.

Second, the letter should state that the request is being made pursuant to the Freedom of Information Act, 5 U.S.C. Section 552. Although counsel is not required to justify or explain why the information is sought, a brief description of the inquiry's purpose may expedite the search.

Third, the request must "reasonably describe" the records sought. If counsel seeks identifiable documents, the request should describe the documents as precisely as possible. For example, a request for a letter should include information on the author and date, and should say what office created the document. The requesting attorney may also refer to published materials relating to the request, and include other facts or descriptions that may assist in narrowing or defining the search. An unnecessarily broad request -- for example, one that asks for "all information in connection with" a particular matter -- may result only in delay or rejection. Courts have found such requests too broad to enable agency personnel to locate the responsive records.

Search And Copying Fees Must Be Paid

When it is necessary to make broad or voluminous requests, it may be useful to identify materials that should not be included in the response. Counsel may also consider asking the agency to forward materials as it reviews the documents, rather than waiting for the agency to finish reviewing all the records first. The requesting party should state its willingness to pay the reasonable costs associated with answering the request (a requirement of the statute). The fees may vary according to the status of the requesting party (e.g., commercial use, educational or scientific use or member of the news media) and among the different agencies. The fees charged by EPA provide a representative example of the range that counsel can expect for commercial use. EPA charges either $8 or $20 an hour for search and review time, depending upon the level of personnel used. Duplication or reproduction of documents, including computer printouts, costs 15 cents per page. Other charges may include computer resource usage in conducting the search, any special handling or transportation of records and $25 for certification or authentication of records. Depending upon the size of the request and counsel's operating budget, it may be advisable to contact the agency's FOIA office to discuss the search and copying fees before the agency begins work. The request letter should also state that the applicant will pursue an administrative appeal if the agency provides an unsatisfactory reply, and should ask the agency to identify the official who would review the appeal.

The requesting party should indicate whether any known exemption applies to the FOIA request. Where an exemption applies, the letter should caution that the agency may not automatically withhold all the information requested, but instead must provide reasonably segregable portions of the requested materials after deleting those portions entitled to exemption. The agency should also be asked to describe the items it intends to withhold and provide a justification for its decision to withhold them.

Response Time Will Be Lengthened

In the past, agencies were afforded 10 business days to make a "determination" on FOIA requests. That time frame will be extended to 20 days as of October 1997, as a result of 1996 amendments to FOIA. After reaching a determination, the agency must notify the requesting party of its action. Ideally, the agency's reply will fully comply with the request within the statutory time frame. A more likely possibility, however, is that the agency will acknowledge the request and state that it has commenced a search for the records. The response may also state that the agency cannot complete the request within the statutory time frame and that an alternative time frame or a modified request should be arranged. Requests for additional time are to be expected when an inquiry seeks many documents or documents that are located in various offices.

FOIA Exemptions May Be Appealed

A request may be denied if the material falls within one of the nine statutory exemptions. The exemptions protect, among other things, commercial or financial information or trade secrets that are privileged or confidential, matters that reasonably could be expected to cause damage to national security, matters protected by executive privilege, the attorney work product doctrine, or the attorney-client privilege, and personnel and medical files or similar files for which disclosure would constitute a clearly unwarranted invasion of privacy. The government has the burden of demonstrating that an exemption applies.

FOIA's exemptions are discretionary, not mandatory. In many cases, counsel should consider appealing agency decisions not to produce documents. In pursuing an appeal, counsel should consult the agency's FOIA regulations for the applicable procedure; each agency, or component within an agency, has its own procedures for appeal. Once counsel has exhausted the administrative appeals process, a FOIA claim may be pursued in federal district court. If counsel succeeds on appeal, the requesting party may attempt to recover its cost and fees for the appeal pursuant to statutory provisions under FOIA, 5 U.S.C. Section 552(a)(4)(E).

Chuca Meyer
(202) 775-9827

Paul W. Terry
(202) 775-9865

The Bulletin is only a general review of the subject covered and does not constitute an opinion or legal advice. (c) 1997 Winthrop, Stimson, Putnam & Roberts

New York Office One Battery Park Plaza New York, NY 10004 Telephone: 212-858-1000 Telefax: 212-858-1500

Go to the Self Help Legal Clinic Liberty's Educational Advocacy Forum Indiana's Fully Informed Jury Association, Inc.