Knowledge will forever govern ignorance.  And people who mean to be their own governors, must arm themselves with the power knowledge gives.  A popular government without popular information or the means of acquiring it, is but a prologue to a farce or a tragedy, or perhaps both.

James Madison (1822)

Citizens frequently use the FOIA to keep track of governmental operations and activities. Indeed, at WELC, we find it is a tool that is central to much of our work and that of our members and clients. Accordingly, we are proud to support the efforts of one of our attorneys, Dave Bahr, in a project he helped develop called FOIAdvocates. It is an award winning website established to advance the time honored concept that Scientia Est Potentia  — Knowledge is Power. Please visit FOIAdvocates and explore the resources it makes available for those intent on “holding the governors accountable to the governed.”

The Freedom of Information Act (FOIA), 5 U.S.C. § 552, makes almost every record possessed by a federal agency available to the public unless it is specifically exempted from disclosure or excluded from the Act's coverage. The FOIA establishes a presumption that information held by agencies of the executive branch U.S. Government is to be publicly accessible. The Act does not apply to Federal elected officials or to the Federal judiciary nor does it apply to states or private parties. 

The Act provides that “any person” has a right of access to records of any federal agency, except for information that is exempt from disclosure by one of nine specific exemptions. The exemptions are to be construed narrowly and the burden is always on the government to justify decisions to withhold information. 

The FOIA sets standards for determining which records must be disclosed and which records may be withheld. The law also provides administrative and judicial remedies for those denied access to records. Above all, the law requires Federal agencies to provide the fullest possible disclosure of information to the public.

The crux of FOIA is to make Federal agencies accountable for information disclosure policies and practices. The United States Supreme Court has held that “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire Co., 437 U.S. 214, 242 (1978). While the Act does not grant an absolute right to examine government documents, it does establish the right to request records and to receive a response to the request. If a record is not released, the requester is entitled to be formally advised of the reason for the denial. The requester also has a right to appeal the denial and, if necessary, to challenge it in court. The Act also imposes a response deadline of 20 working days for both an initial request and an administrative appeal. Consequently, access to information of the Federal Government cannot be controlled by arbitrary or unreviewable actions of a hidden bureaucracy.

One need not be an attorney to submit a FOIA request or administrative appeal. The request or appeal must be in writing and sent to the agency possessing the requested information. Each agency is required to publish regulations directing how a request or appeal is to be made and these must be followed or the agency can ignore the request or appeal. These regulations can be found by going to an agency’s website and looking for a link, usually at the bottom of the page, called “Freedom of Information Act” or  “Electronic Reading Room.”

 
There is no initial fee for submitting a FOIA request but an agency may assess charges for searching, reviewing and/or copying responsive information. However, such fees may be reduced or waived entirely if the requester can demonstrate that disclosure of the requested information is in the public interest because it will contribute significantly to public understanding of the operations of the government and is not primarily in the requester’s commercial interest. A requester has the initial burden to explain how it satisfies this standard but once it does so, the burden shifts back on an agency to justify the denial of a fee waiver request. An agency decision to deny a fee waiver can be appealed or litigated in the same way as a determination to withhold information.