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Freedom of Information Act 1966

The Freedom of Information Act (FOIA) was originally enacted in 1966. It established for the first time a statutory right of access by any person to federal agency records unless the information sought was specifically exempted. The act requires certain materials to be made available under the agency's own initiative by publication in the Federal Register or in public reading rooms. Disclosure, not secrecy, is the dominant objective of the act.

After President Lyndon B. Johnson threatened a veto, the exemptions were broadened. The act, which went into effect in 1967, is codified as Title 5 U.S.C. § 552 and has been amended five times. At first, agencies interpreted the exemptions broadly and employed a variety of means to discourage FOIA use, including high fees, long delays, and claims that they could not find the requested materials. More recently, however, courts have interpreted most exemptions narrowly and fashioned procedural remedies against agency intransigence.

Administrative Process

The act specifies certain administrative procedures for processing requests. The initial request may be made to agency headquarters or a regional office and must “reasonably describe” the information sought. A statement of need is not necessary under FOIA, but may prove relevant in convincing an agency official to release the sought after information. Search and copy fees may apply, although it is also possible to have these fees waived. Generally, there is a 20-working-day statutory time limit for the agency response, but some agencies (particularly the FBI and CIA) may take years to reply. Such delay may usually be construed as a denial, although administrative remedies may be available if this occurs.

Once the relevant federal agency has determined whether the FOIA request will be honored, the agency must provide the individual or group that has lodged the request with a statement of what will or will not be released. The agency must also issue a statement of any reasons it may have for withholding the request and instruct the person about his or her right to appeal the determination. Finally, if necessary, the agency will also explain why it is not in the public interest to waive a fee.

Fees and Fee Waivers

A requestor may incur three types of fees: (1) the cost of the search, (2) the cost of review, and (3) duplication costs. Agencies are required to provide for free the first two hours of search time and the first 100 pages of copying to noncommercial requestors. Multiple requests will not bypass fees.

The act states that if disclosure of the information is in the public interest, so as to contribute significantly to the public understanding of how government works, it may qualify for a fee waiver. However, the burden is on the requestor to prove (a) genuine public interest, (b) value of the records to the public, (c) that the information is not already in the public domain, (d) “expertise” in one's ability and intention to disseminate information, and (e) no personal interest in disclosure. A court can review agency fee action de novo (anew).

Administrative Appeals

Generally, exhaustion of administrative remedies is required prior to requesting judicial relief (i.e., obey each agency rule relating to data request). The burden of producing evidence of a proper agency appeal is on the requestor. The following items can be appealed: (a) denial of a request in full or in part, (b) adequacy of the agency's search, (c) failure to respond within the time limits, (d) excessive fees, or (e) denial of a request for waiver of or a fee reduction. An appeal usually results in the release of additional documents that were initially withheld.

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