Office of Government Information Services (OGIS)

FOIA Frequently Asked Questions

1.What is the Freedom of Information Act (FOIA) and what does it apply to?

2. How do I make a FOIA request?

3. How do I file an appeal?

4. Are Congressional records subject to the FOIA?

5. Are Court records subject to the FOIA?

6. How do FOIA and the Privacy Act of 1974 intersect?

7. Am I entitled to a Vaughn Index?

8. In response to my FOIA request, the agency said that under a routine records retention schedule and departmental regulations it destroyed records that may have been responsive to my request. What does this mean?


1. What is the Freedom of Information Act (FOIA) and what does it apply to?

The FOIA requires Federal agencies to make specific records available on their websites and gives the public the right to request agency records. Federal courts, Congress, and many offices within the White House are not subject to FOIA.

The FOIA also does not apply to state, local and tribal governments. Individual states have passed their own freedom of information access laws. You can learn more about state laws by visiting the Open Government Guide created by the Reporters Committee for Freedom of the Press.

2.  How do I make a FOIA request?

Generally, each agency has specific contacts to whom requesters should submit FOIA requests.  The contact information on an agency’s FOIA website should include the agency’s FOIA contact’s name, mailing address, telephone and fax number, an email address, the name and contact information for the agency’s FOIA Public Liaison, and the name and contact information for the agency’s Chief FOIA Officer. Some departments have components with separate FOIA contacts to whom requesters should submit FOIA requests. The contact information for filing a request can be found in the agency’s FOIA regulations, which are published in the Federal Register, and on the agency’s FOIA website. FOIA.gov – a Department of Justice web site - also lists contacts for each agency.

3.  How do I file an appeal?

FOIA provides requesters with the right to file an appeal from an agency’s denial of a request. 5 U.S.C. § 552(a)(6)(A)(i). If you receive a  response to a FOIA request that results in the denial of information, either by citing an exemption to FOIA, by stating that the agency does not have any responsive records or by stating the agency cannot confirm or deny the existence of records, you may appeal that denial. An agency’s final response letter should contain information on where to send the appeal and give the time limit for filing the appeal. That information should also be available on agencies’ FOIA web pages or by calling agencies’ FOIA Service Centers. This information is agency-specific, so you will want to confirm it for the agency at issue prior to filing the appeal.

In your appeal, you should state that you are appealing the agency’s release determination and reference the agency’s FOIA request number and the date of the correspondence. You may also set forth why you believe the agency’s response was improper and explain why you believe you should receive the records requested. After submitting your appeal, you should receive an acknowledgment from the agency that it has been received and you may be assigned a FOIA appeal number that is separate from your FOIA request number. You should reference that number when contacting the agency to check the status of your appeal.

4.  Are Congressional records subject to the FOIA?

FOIA applies only to records of Federal executive branch agencies. Records created by Congress are not subject to FOIA. Requesters cannot submit FOIA requests to Congress to obtain records.

Many resources exist to aid the public in finding Congressional records, such as the service “Thomas,” operated by the Library of Congress, available online at:http://thomas.loc.gov/

The U.S. Government Publishing Office also provides access to Congressional information on its Web site at: http://www.gpo.gov/fdsys/. Many members and committees proactively post documents on their own Web sites as well.

5. Are Court Records subject to the FOIA?

FOIA covers records held by the executive branch, not the judicial or legislative branches of the Federal government. As such, FOIA cannot be used to obtain Federal court records.

If you are interested in obtaining Federal court records, you may use Public Access to Court Electronic Records, or PACER, which provides online access to U.S. Appellate, District and Bankruptcy court records nationwide. PACER is available to anyone who registers for an account and pays a fee for the service.

State and local court records are also not covered by FOIA; rather, state laws govern access to such judicial records. Some state courts are subject to that state's public records law, while other state courts are not. The Open Government Guide, published by The Reporters Committee for Freedom of the Press, allows online searches for each state's law pertaining to judicial records. Requests for state or local court records generally should be made to the clerk of court's office.

PACER:
http://www.pacer.gov/

RCFP Open Government Guide:
http://www.rcfp.org/ogg/index.php

6. How do FOIA and the Privacy Act of 1974 Intersect?

Both FOIA and the Privacy Act of 1974 (Privacy Act) contain provisions that grant a right of access to Federal records. FOIA applies to all executive branch agency records and “any person” can request records under FOIA. The Privacy Act grants individuals access to their own records that are maintained by the federal government. The Privacy Act’s access provisions apply only to U.S. citizens and aliens lawfully admitted for permanent residence. FOIA applies to records that are either created or maintained by an agency or under the agency’s control. The Privacy Act applies to any item, collection or grouping of information about an individual that is maintained in a “system of records”. A Privacy Act “system of records” exists when information from this system is retrieved using an individual’s name or personal identifier (case file number, Social Security Number, etc.)

Federal agencies process access requests under both the FOIA and the Privacy Act to provide requesters with the greatest degree of access.  When requests are processed under both laws, information may only be withheld if it is exempt under both laws – if only one of the laws declares the information exempt, it must be released.

Please note that OGIS does not have statutory authority regarding Privacy Act requests. However, we have had some success providing Privacy Act requesters with information about the status of a request and/or about the Privacy Act/FOIA process within an agency.

Privacy Act matters fall outside the scope of our OGIS's mission as the FOIA Ombudsman. However, many Privacy Act requests overlap with FOIA; therefore, OGIS provides ombuds services, including providing information about the process and the status of requests, to individuals requesting their own records. OGIS does not have a statutory role in reviewing policies, procedures and compliance with the Privacy Act as we do with FOIA.

For more information on the relationship between the FOIA and the Privacy Act, you may wish to refer to "Your Right to Federal Records: Questions and Answers on the Freedom of Information Act and Privacy Act," a joint publication of the General Services Administration and the Department of Justice. The document provides basic guidance about the FOIA and the Privacy Act.

7. Am I entitled to a Vaughn Index?

A Vaughn Index is a document that agencies prepare in FOIA litigation to justify each withholding of information under a FOIA exemption. The term arose from a case captioned Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974), in which the court required such an index to determine the validity of the agency’s withholdings in the case. Sometimes such an index can be useful in a non-litigation setting, though the Vaughn ruling does not require that agencies prepare an itemized index of withheld documents, in the context of the administrative process. A requester whose FOIA request is pending in the administrative stage of processing, is not entitled to a Vaughn index.

A Vaughn Index must: (1) identify each document withheld; (2) state the statutory exemption claimed; and (3) explain how disclosure would damage the interests protected by the claimed exemption." Citizens Comm'n on Human Rights v. FDA, 45 F.3d 1325, 1326 n.1 (9th Cir. 1995).

8. In response to my FOIA request, the agency said that under a routine records retention schedule and departmental regulations it destroyed records that may have been responsive to my request. What does this mean?

Federal agencies do not retain records forever. All Federal records fall into one of two categories: permanent or temporary. Under the Federal Records Act, each agency must have "records schedules" (also referred to as record control schedules, record disposition schedules, or disposition authorities) that identify agency records as either temporary or permanent and prescribe how records within that agency are organized and stored. All records schedules must be approved by the National Archives and Records Administration (NARA). A records schedule provides mandatory instructions for the disposition of the records (including the transfer of permanent records to NARA and the destruction of temporary records) when the agency no longer needs them. NARA provides online access to scanned images of Federal agency records schedules that have been developed by Federal agencies and approved by the Archivist of the United States since 1985.

 

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