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User's Guide to the
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| This pamphlet was produced by the Organization of American Historians in 1984, and reprinted in 1987.
Authors: David F. Trask, Department of the Army David M. Baehler, Department of State Roger M. Anders, Department of Energy |
What is the Freedom of Information Act? The Freedom of Information Act (FOIA) provides a means to obtain official information about the activities of the U.S. government. It is part of the Administrative Procedure Act, Title 5, Chapter 5 of the United States Code. It is cited as follows: 5 U.S.C. 552. The FOIA became law in 1966; significant amendments were added in 1974 and 1976. What Official Records Come Under the Freedom of Information Act? Practically all of the unpublished official records produced by the executive branch not publicly available fall within the purview of the FOIA, excepting only certain records of the President (see Some Hints below). The. FOIA does not apply to either legislative or judicial records. Any official record must be released upon request unless the executive agency that produced the information can establish that it falls within one or more of nine categories of exempted records, that is, categories that may be denied to the requester. If some portion of an official record is deemed exempt, it may be denied, but other parts must be released to the requester. What Categories of Records May be Withheld from Requesters? The FOIA lists nine exemptions: (1) information that is security-classified under the terms of a presidential executive order as "confidential," "secret," or "top secret''; (2) information related solely to internal personnel practices or rules of an agency; (3) information specifically exempt from disclosure under other federal legislation, for example, the Atomic Energy Act; (4) information considered to be confidential business information such as trade secrets or confidential financial data; (5) information dealing with interagency and intra-agency communications that form a part of the decision-making process; (6) information that permits a "clearly unwarranted invasion of personal privacy''; (7) information about investigatory matters collected to further law enforcement that would interfere with law enforcement, deprive a person of a fair trial, cause an invasion of privacy, expose the identity of a confidential source, disclose investigative techniques, or endanger lives of law enforcement personnel; (8) information concerning financial institutions held by agencies that regulate or supervise such institutions; (9) information about wells of, a geological or geophysical nature such as oil. How Does a Requester Make a Freedom of Information Request? A request must be made in writing to the agency that holds the relevant records. The request must be ''reasonable" in nature, that is, (1) it must provide relatively specific information about the requested records; and (2) the task of making records available must be within the ability of the concerned agency. A congressional committee has suggested approximately the following format for an FOIA request: Agency Head or FOIA Officer and Title Dear __________: Under the provisions of the Freedom of Information Act, U.S.C. 552, I request access to (identify the records as clearly and as specifically as possible). Please inform me of any fees that may be charged for searching or copying records prior to fulfilling my request. (OR: Please do not inform me of any fees that may be charged for search or copying records, if the fees do not exceed $---.) If all or any part of this request is denied, please cite the specific exemption that you think justifies your refusal, and inform me of appeals procedures available under the law. I would appreciate your processing this request a s soon as possible, and I look forward to hearing from you within ten days, as stipulated in the law. Sincerely yours, If you wish, you may in addition give reasons for seeking the information in question, especially if it will assist in identifying and releasing it. Also, you may ask for a waiver of fees if you believe your request is one "primarily benefitting the public," a claim that may often apply to information needed for scholarly purposes. What is the Cost of a Freedom of Information Request? Agencies are authorized to charge moderate fees to meet the cost of searching for records and copying them. These fees may be waived if the request concerns records that are to be used to benefit the public. You should routinely request cost information before receiving materials, as illustrated in the suggested letter above. Fees vary from agency to agency. Although fees are moderate, the expense of obtaining a large number of records may be considerable. What Requirements Must Agencies Meet? An agency is allowed ten working days in which to reply to an FOIA request. Usually agencies merely acknowledge a request within that time. If the requester is denied information and makes a formal appeal, the agency must reply within twenty working days. Responses may be slow provided "unusual circumstances" pose difficulties. In this event, requesters should try to elicit a commitment to response within a given period. The requester may also give notice of an intent to appeal should the delay became unduly long. Many agency replies are delayed, especially those from organizations that hold large amounts of records or security-classified information. Those facing time constraints should recognize that they may not receive replies for as long as two years or more. What Rights of Appeal Are Available to the Unsuccessful Requester? A requester who is denied all or part of desired information may then file a formal appeal. The agency must reply to the appeal within twenty working days, except in "unusual circumstances." However, agencies generally take longer than twenty days to act. A congressional committee suggests approximately the format for appeals indicated in the following example. Name of Agency Official Title Dear _________: I hereby appeal the denial of request for information pursuant to the Freedom of Information Act, U.S.C. 552. On ______ (give date) I recieved a letter from ________ (give name), a representative of your agency, denying my request for access to ________ (give description of denied information). I enclose copies of my request and of your denial. As provided in the Act, I expect to receive a reply to this appeal within twenty working days. Sincerely yours, If you wish, you may add another sentence indicating your intent to seek redress in the courts should your appeal prove unsuccessful. What if the Agency Denies an Appeal? If an agency denies information or fails to meet time limits or other provisions of the FOIA, a requester may file suit in U.S. District Court. Such cases are supposed to receive priority on the court calendar. In such cases, the government bears the burden of proof . When doubt exists, the court is expected to order disclosure. If the court rules in favor of the requester, it may order the government to reimburse the plaintiff for court costs and attorney fees. Moreover, if the court finds that agency officials acted "arbitrarily and capriciously" in their refusal to release information, the Office of Personnel Management may make inquiries about possible disciplinary action. Some Hints 1) Relations with Agencies Historians should make formal requests only after exhausting simpler means such as contacting historical offices. After filing an F0IA request, do not immediately assume that agencies will do everything possible to circumvent your request. Courteous but firm behavior is more likely to elicit action than angry or threatening behavior. Direct contact with responsible officials often assists in expediting requests. Remember that freedom of information offices are often understaffed, that agency records frequently are difficult to search, and that agency personnel often are unfamiliar with records more than two or three years old. Nevertheless, do not hesitate to make use of remedies provided in the FOIA should an agency official take actions that you deem arbitrary or capricious. 2) Congressional Assistance Individual members of Congress and senators can gain the attention of executive agencies more quickly than almost anyone else. When other expedients fail, seeking assistance from a legislator may be helpful. 3) Special Problems of Historians Historians may encounter difficulties in using the FOIA because: (1) they may seek large quantities of records; (2) the records they desire are very possibly within one or more of the exempted categories; (3) the records may be needed in a short period of time. Careful and realistic assessment of the circumstances may save a great deal of frustration. Historians should ask themselves two questions: "Is my request practical in the given circumstances?" "How can my request be tailored to minimize complications?" Historians often approach agencies informally before filing an FOIA request, especially those agencies with historical offices able to advise those seeking access to records, to avoid unprofitable expenditures of time. 4) Presidential Papers The FOIA specifically permits requests for papers generated in the Executive Office of the President, which includes such organizations as the Office of Management and Budget and the National Security Council. Requesters may not obtain information generated in "The White House Office'' by personal advisers of the President, such as the White House counsel. Moreover, recent legislation concerning Presidential papers (Presidential Records Act of 1978, 44 U.S.C. 2201, Chapter 22) protects those of chief executives beginning with President Ronald Reagan for up to five years to permit necessary processing. Also, certain categories of papers my be protected for up to twelve years, including some of the FOIA exemptions and two separate groups: confidential communications and information relating to federal appointments. 5) Interpretations of the FOIA The legislative language in the statute is necessarily broad. It is, therefore, subject to both administrative and judicial interpretation. Administrative rulings and case law necessarily accumulate; in some situations, requesters may wish to consult publications that report on the FOIA, or they may decide to employ legal counsel. 6) FOIA and the Privacy Act The FOIA makes information available to which every citizen and all aliens have a right. The Privacy Act, 5 U.S.C. 552a, seeks ''to give citizens more control over what information is collected by the Federal Government about them and how that information is used." The two laws distinguish between information deemed open to all and information that should be controlled in the interest of legitimate privacy. Only American citizens may request information under the Privacy Act, and that information can concern only the- g'iven requester. 7) Security-Classified Information and the FOIA 8) Information About Previously Released Documents It is entirely possible that information you seek has been released to an earlier requester. An organization known as Research Publications, Inc. (12 Lunar Drive, Woodbridge, Connecticut 065215) publishes the Declassified Documents Reference System. It is on microfiche. The Carrollton Press formerly published this material. Research Publications, Inc. claims that its system, "is the only comprehensive compilation of documents microfilmed, abstracted, and indexed as they are released by government agencies or obtained from the National Archives and Presidential Libraries." Backfiles are available from Research Publications, Inc. for 1975-81. Additional information for a given calendar year is released during the following year (1982 in 1983, 1983 in 1984, and so on). Some Addresses Following are addresses, telephone numbers, and URLs for freedom of information offices in the agencies to which historians most frequently submit requests. To obtain addresses and telephone numbers for freedom of information offices in other agencies, contact the central office of that agency by telephone or letter. Arms Control and Disarmament Agency: Central Intelligence Agency Department of Defense, Office of the Secretary of Defense and the Joint Chiefs of Staff: Office of the Assistant Secretary of Defense Department of Defense Department of the Air Force: Freedom of Information Manager Department of the Army Department of Defense, Department of the Navy: Director, Navy Staff Department of Defense, Marine Corps Department of Energy: Department of Justice, Federal Bureau of Investigation: National Security Agency National Security Council: |
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