FOIA has nine exemptions. Congress decided that the records need not be disclosed, although agencies have the discretion to release these records if they want to use that discretion.

FOIA practitioners discuss the exemptions by the number that they are given in the statute itself:

Exemption 1 – National Security

Exemption 2 – Internal Agency Rules

Exemption 3 – Information Exempted by Other Statutes

Exemption 4 – Business Information

Exemption 5 – Inter and Intra Agency Memoranda

Exemption 6 – Personal Privacy

Exemption 7 – Law Enforcement Records

Exemption 8 – Records of Financial Institutions

Exemption 9 – Oil Well Data 

There are several distinct steps in the FOIA process:

The first involves a written request to a federal agency.

After the request is received, the government agency normally responds with a tracking number.

The agency has 20 working days (excluding federal holidays, Saturdays, and Sundays) to produce the records requested.

If the agency does not respond or does not supply the nonexempt responsive records within 20 working days, the requester has a right to sue in federal court. If some or all of the records are produced, the federal agency notifies the requester that they have a specific time to administratively appeal. That administrative appeal must be filed within the time stated by the agency (agencies have the authority to set the deadline, but it’s usually 45 or 60 days).

If the agency does not decide on the administrative appeal within 20 working days, the requester can sue in federal court.

If the agency is sued in the federal court in Washington, D.C., the United States Attorney for the District of Columbia, typically represents the agency, which becomes the defendant in the case and the requester becomes the plaintiff. The judge in the case eventually makes a decision on what records will be released, dismisses the case, or the parties agree on a resolution of the case. 

A federal agency consists of a federal government’s major departments, administrations, and bureaus. FOIA excluded the federal courts, president, vice president, and congress, but pretty much every agency of the executive branch of the federal government is a federal agency. 

Requests must be in writing, state that it’s a request under the Freedom of Information Act, must be directed against a federal agency, and must include your name, address, and other contact information. It can be made by an individual, corporation or nonprofit organization or by an attorney for any person. If you’re requesting a waiver of search fees, you should indicate this, and give good reasons for why the waiver is proper. 

A request under FOIA is free to the requester and the request can be delivered by U.S. Mail or by finding the appropriate website and completing the request online. For information on specific federal agencies and how to submit an online request, please visit: https://www.foia.gov/report-makerequest.html 

All non-exempt responsive records are records that can be requested. If the records are exempted from release, then the public ordinarily can’t get those. 

Attorney Fees

One of the things that prevents individuals and nonprofit groups from seeking legal advice on FOIA matters is the fear that attorney fees will be too high. Another fear of potential clients is that it will be impossible to navigate the federal government’s FOIA process. To take some of the fear out of this process, we offer a free initial consultation.

Special Attorney Fee Rules for Non-Profits and Journalists

If you’re a nonprofit or journalist, there are special rules for you on attorney fees. Depending upon your case, we may be able to represent you on a “fee shift” basis.

Search Fees

FOIA assumes that there are going to be costs associated with searching for the records you’re seeking. These search fees are paid by the request, except there are exceptions to that general rule. The first exception is if the federal agency doesn’t provide the records within the 20 day time period. The second exception is if the requester can show that the disclosure of the records is in the public interest. Requesters must show that disclosure is likely to “contribute significantly to operations or activities of government” and is not primarily in the commercial interest of the requester.

Search Fee Waiver

Do you volunteer or work for a nonprofit organization, whether or not it has received tax-exempt status from the Internal Revenue Service under 501 (c)(3)? Are you an environmental activist, scientist, writer, blogger, or author? Are you researching a book or article?

If so, you may have special rights under FOIA. You have greater chances of obtaining search fee waivers, particularly if you describe – in your request – how you’ve used information in the past, how you’ve distributed information in the past, and how you’d do that with the records you obtained from your present FOIA request.

Fee Shift on Attorney Fees

Also, if you’ve had difficulty obtaining records from a federal agency, you may have additional rights to obtain the attorney “fee shift.” This means, in appropriate cases, you could have an attorney represent you, and the fees – if any – would be paid by the government. 

A federal agency consists of a federal government’s major departments, administrations, and bureaus. FOIA excluded the federal courts, president, vice president, and congress, but pretty much every agency of the executive branch of the federal government is a federal agency. 

If the response also included a “final determination” you should administratively appeal. Normally you have 60 days to make your appeal. 

It is typically a two or three-page letter, in which the requester is asking an agency to change the decision of the agency about redactions and application of exemption law.

One of the most important aspects of FOIA is the administrative appeals process. If a federal agency decides that records must be produced or must partially be produced, that decision can be appealed – not to a court but an administrative appeals officer. This person works for the department of the agency which made the decision, but they aren’t a federal judge. It’s important to realize that FOIA is an administrative law: the agency is supposed to respond to requests and if those requests are denied or the records are redacted, then there’s an administrative process to resolve these things. You must exhaust your administrative rights before going to federal court. The administrative appeals process can be completed without a lawyer, although lawyers are allowed to participate in this process. It usually involves writing a multi-page appeal and there is no oral argument. 

You can only go to court if you have exhausted your administrative remedies. You can’t sue an agency on the 19th day, because FOIA says agencies have 20 days. You can’t sue an agency if you have not administratively appealed. 

A record can be many things. It includes: document, report, photograph, database, chart, map, letter, email, phone log, basically anything that’s already been created and something you can see and touch. 

Two big misconceptions:

Some people think that federal agencies must give them exactly what they want. That’s just not true. Some people think that they are entitled to “information” held by federal agencies. That’s not really true, either, in that federal agencies must release non-exempt responsive records but federal agencies don’t have to write up or construct records that satisfy a requester’s request. If there’s no record, there’s no record.

The second major misconception is that a nonprofit or journalist has to be backed by big money to bring this type of litigation. On the contrary, the majority of our clients are modestly funded organizations or journalists who obtain our services because of fee shifting. 

There are several ways a requester can go to federal court. The first is when the request is made and there is no response by the federal agency. That process requires the expiration of the 20 day period. The second is 20 working days after an administrative appeal is filed or after an administrative appeal is decided

For our law firm, federal litigation starts with the electronic filing of a complaint in the United States District Court for the District of Columbia, and a request for a summons on the federal defendant. After the service of the complaint and summons on the federal agency, U.S. Attorney General, and U.S. Attorney for the District of Columbia, the federal agency has 30 days to answer. Litigation can be used to force the agency to justify its exemptions and redactions to requested records.