http://www.sba.gov/foia/guide.html#sco

A CITIZEN'S GUIDE ON USING THE FREEDOM OF INFORMATION ACT AND THE PRIVACY ACT OF 1974

TO REQUEST GOVERNMENT RECORDS

First Report by The House Committee on Government Operations

Subcommittee on Information, Justice, Transportation, and Agriculture

1993 Edition

House Report 103-104

103rd Congress, 1st Session

Union Calendar No. 53

Section A. shown here...use above link to view entire guide...

A. The Scope Of The Freedom of Information Act

The federal Freedom of Information Act applies to documents held by agencies in the executive branch of the federal government. The executive branch includes cabinet departments, military departments, government corporations, government controlled corporations, independent regulatory agencies, and other establishments in the executive branch.

The FOIA does not apply to elected officials of the federal government, including the President[9], Vice President, Senators, and Congressmen.[10] The FOIA does not apply to the federal judiciary. The FOIA does not apply to private companies; persons who receive federal contracts or grants; tax-exempt organizations; or state or local governments.

All States and some localities have passed laws like the FOIA that allow people to request access to records. In addition, there are other federal and state laws that may permit access to documents held by organizations not covered by the federal FOIA.[11]

The FOIA requires agencies to publish in the Federal Register—thereby, under the Government Printing Office Electronic Information Access Enhancement Act of 1993, 18

All other ‘records’ of a Federal agency may be requested under the FOIA. The form in which a record is maintained by an agency does not affect its availability. A request may seek a printed or typed document, tape recording, map, photograph, computer printout, computer tape or disk, or a similar item. The 1996 FOIA amendments affirm the general policy that any record, regardless of the form in which it is stored, that is in the possession and control of a Federal agency is usually considered to be an agency record under the FOIA. Although the FOIA occasionally uses terms other than ‘record,’ including ‘information’ and ‘matter,’ the definition of ‘record’ made by the 1996 amendments should leave no doubt about the breadth of the policy or the interchangeability of terms.

Of course, not all records that can be requested under the FOIA must be disclosed. Information that is exempt from disclosure is described below in the section entitled ‘Reasons Access May Be Denied Under the FOIA.’

The FOIA, it should be noted, provides that a requester may ask for records rather than information. This means that an agency is only required to look for an existing record or document in response to a FOIA request. An agency is not obliged to create a new record to comply with a request. An agency is neither required to collect information it does not have, nor must an agency do research or analyze data for a requester. 21

Requesters must ask for existing records. Requests may have to be carefully written in order to obtain the desired information. Sometimes, an agency will help a requester identify a specific document that contains the information being sought. Other times, a requester may need to be creative when writing a FOIA request in order to identify an existing document or set of documents containing the desired information.

There is a second general limitation on FOIA requests. The law requires that each request must reasonably describe the records being sought. This means that a request must be specific enough to permit a professional employee of the agency who is familiar with the subject matter to locate the record in a reasonable period of time.

Because agencies organize and index records in different ways, one agency may consider a request to be reasonably descriptive while another agency may reject a similar request as too vague. For example, the Federal Bureau of Investigation (FBI) has a central index for its primary record system. As a result, the FBI is able to search for records about a specific person. However, agencies that do not maintain a central name index may be unable to conduct the same type of search. These agencies may reject a similar request because the request does not describe records that can be identified.

Requesters should make requests as specific as possible. If a particular document is required, it should be identified precisely, preferably by date and title. However, a request does not always have to be that specific. A requester who cannot identify a specific record should clearly explain his or her needs. A requester should make sure, however, that a request is broad enough to include all desired information.

For example, assume that a requester wants to obtain a list of toxic waste sites near his home. A request to the Environmental Protection Agency (EPA) for all records on toxic waste would cover many more records than are needed. The fees for such a request might be very high, and it is possible that the request might be rejected as too vague.

A request for all toxic waste sites within 3 miles of a particular address is very specific. However, it is unlikely that the EPA would have an existing record containing data organized in that fashion. As a result, the request might be denied because there is no existing record containing the information.

The requester might do better to ask for a list of toxic waste sites in his city, county, or State. It is more likely that existing records might contain this information. The requester might also want to tell the agency in the request letter exactly what information is desired. This additional explanation may help the agency to find a record that meets the request.

Many people include their telephone number with their requests. Some questions about the scope of a request can be resolved quickly when an agency employee and the requester talk. This is an efficient way to resolve questions that arise during the processing of FOIA requests.

It is to everyone’s advantage if requests are as precise and as narrow as possible. The requester benefits because the request can be processed faster and cheaper. The agency benefits because it can do a better job of responding to the request. The agency will also be able to use its resources to respond to more requests. The FOIA works best when both the requester and the agency act cooperatively.

The first step in making a request under the FOIA is to identify the agency that has the records. A FOIA request must be addressed to a specific agency. There is no central government records office that services FOIA requests.

Often, a requester knows beforehand which agency has the desired records. If not, a requester can consult a government directory such as the United States Government Manual. 22

Agencies require that FOIA requests be in writing. Letters requesting records under the FOIA can be short and simple. No one needs a lawyer to make a FOIA request. Appendix 1 of this Guide contains a sample request letter.

The request letter should be addressed to the agency’s FOIA officer or to the head of the agency. The envelope containing the written request should be marked ‘Freedom of Information Act Request’ in the lower left-hand corner. 23

There are three basic elements to a FOIA request letter. First, the letter should state that the request is being made under the Freedom of Information Act. Second, the request should identify the records that are being sought as specifically as possible. Third, the name and address of the requester must be included.

Under the 1986 amendments to the FOIA, fees chargeable vary with the status or purpose of the requester. As a result, a requester may have to provide additional information to permit the agency to determine the appropriate fees. Different fees can be charged to commercial users, representatives of the news media, educational or noncommercial scientific institutions, and individuals. The next section explains the fee structure in more detail.

There are several optional items that are often included in a FOIA request. The first is the telephone number of the requester. This permits an agency employee processing a request to speak with the requester if necessary.

A second optional item is a limitation on the fees that the requester is willing to pay. It is common for a requester to ask to be notified in advance if the charges will exceed a fixed amount. This allows the requester to modify or withdraw a request if the cost may be too high. Also, by stating a willingness to pay a set amount of fees in the original request letter, a requester may avoid the necessity of additional correspondence and delay.

A third optional item sometimes included in a FOIA request is a request for a waiver or reduction of fees. The 1986 amendments to the FOIA changed the rules for fee waivers. Fees must be waived or reduced if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. Decisions about granting fee waivers are separate from and different than decisions about the amount of fees that can be charged to a requester.

A fourth optional item is the specification of the form or format in which the requested material is sought. This is an important consideration if a requester desires the responsive information in a particular format. For example, should information maintained by an agency in an electronic form be provided in that same form (perhaps on a disk or CD-ROM) or in hardcopy (such as a paper printout)? The 1996 amendments to the FOIA require agencies to help requesters by providing information in the form requested, including requests for the electronic form of records, if the agency can readily reproduce it in that form. Part of this helping effort includes informing requesters of costs and delays that format preferences might engender.

A fifth optional consideration is seeking expedited processing of a request by showing a ‘compelling need’ for a speedy response. The 1996 amendments to the FOIA require the agencies to promulgate regulations authorizing expedited access where a requester demonstrates a ‘compelling need’ for quick response. A ‘compelling need’ warranting faster FOIA processing exists in two categories of circumstances. In the first category, the failure to obtain the records within an expedited deadline poses an imminent threat to an individual’s life or physical safety. The second category requires a request by someone ‘primarily engaged in disseminating information’ and ‘urgency to inform the public concerning actual or alleged Federal Government activity.’ Agencies may determine other cases in which they will provide in their regulations for expedited processing.

The specified categories for compelling need are intended to be narrowly applied. A threat to an individual’s life or physical safety qualifying for expedited access should be imminent. A reasonable person should be able to appreciate that a delay in obtaining the requested information poses such a threat. A person ‘primarily engaged in disseminating information’ should not include individuals who are engaged only incidentally in the dissemination of information. The standard of ‘primarily engaged’ requires that information dissemination be the main activity of the requester, although it need not be his or her sole occupation. A requester who only incidentally engages in information dissemination, besides other activities, would not satisfy this requirement.

The standard of ‘urgency to inform’ requires that the information requested should pertain to a matter constituting a current exigency for the American public and that a reasonable person might conclude that the consequences of delaying a response to a FOIA request would compromise a significant recognized interest. The public’s right to know, although a significant and important value, would not by itself be sufficient to satisfy this standard.

A requester should keep a copy of the request letter and related correspondence until the request has been finally resolved.