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​How Does the Freedom of Information Act Work and What are its Limitations?

November 20, 2020

A critically important principle of the United States is that the public has a general right to know what the government is doing. Congress passed the Freedom of Information Act (FOIA) in 1966 to provide the executive branch of the federal government with directives for which information should be made directly available to the public, and what should be provided upon request. The law, found at 5 U.S.C. § 552, also identifies information and records that are exempt from disclosure by the government, or that should be excluded altogether from responses to requests by the public.

The Freedom of Information Act may be useful for potential challenges of government conduct, particularly before litigation, including an Administrative Procedure Act case.

What is the Freedom of Information Act?

FOIA only applies to agencies of the executive branch in the federal government, such as the Environmental Protection Agency (EPA) or the Federal Bureau of Investigation (FBI). State laws like the California Public Records Act cover disclosures by state and local governments.

Before 1966, federal law gave executive agencies rather wide discretion over the information that they made available to the public. FOIA created a standard for the entire executive branch. Subsections (a)(1) and (a)(2) of § 552 identify information that federal agencies must make directly available to the public. Agencies must publish proposed and final regulations in the Federal Register, along with amendments to existing regulations. Opinions, legal interpretations, and policy statements should be made available in digital format. This often means publication on an agency’s website.

Under § 552(a)(3), agencies should make other information available in response to requests from the public. They must inform the public of the procedure for making such a request, commonly known as a “FOIA request.”

Which Information May the Public Request?

FOIA does not directly identify the kinds of information that the public may request from the government. Subsection (a)(3) states that federal agencies must provide information that is not identified in (a)(1) or (a)(2), and that is not subject to an exemption or exclusion from disclosure. These subsections generally apply to rules, regulations, policies, and other documents that have been prepared in a final form. FOIA requests under (a)(3) often seek records used by an agency in developing a regulation or policy.

A FOIA request must comply with a particular agency’s forms and procedures for such requests. This information must be easily accessible by the public. The request must “reasonably describe[] [the] records” that the person is seeking, and it should specify whether they want the records in digital or physical form. The agency has 20 business days after receipt of the request to determine whether any of the requested information is subject to an exemption or exclusion.

Which Information is Exempt from the Freedom of Information Act?

Section 552(b) identifies nine categories of information and documents that are exempt from disclosure. Agencies must identify the claimed exemption when denying a FOIA request.

1. Classified Information About National Defense or Foreign Policy

Executive Order 13526, issued in 2010, is the most recent executive order addressing classification of information. Anything classified by the executive branch in accordance with this order is exempted from FOIA disclosure.

2. Personnel Rules

Agencies do not need to produce records regarding their internal personnel rules and practices.

3. Statutory Exemptions

Other federal statutes may provide that certain information is exempt from FOIA disclosure. Congress narrowed this exemption considerably with the OPEN FOIA Act of 2009, which limits the exemption to statutes enacted after October 2009.

4. Trade Secrets

Trade secrets and other confidential information obtained by an agency from a third party are not subject to disclosure.

5. Inter- or Intra-Agency Correspondence

Letters and memoranda sent within an agency or between agencies are exempt from FOIA if they would generally not be subject to discovery in a lawsuit.

6. Private Personnel and Medical Files

Personal information, such as individual personnel files for agency employees, is exempt.

7. Law Enforcement

“[R]ecords or information compiled for law enforcement purposes” are exempt to the extent that disclosure would:

  • Interfere with an ongoing investigation or prosecution;
  • Harm someone’s right to a fair trial;
  • Violate personal privacy rights; or
  • Compromise the identity of a confidential informant.

8. Financial Institutions

Agencies that regulate or supervise financial institutions are not obligated to disclose information in “examination, operating, or condition reports” that they prepare.

9. Wells

This rarely used exemption covers “geological and geophysical information and data” about wells, “including maps.” It is not clear which kinds of wells, such as oil wells or water wells, are included.

Which Information Is Excluded from the Freedom of Information Act?

Section 552(c) identifies three exclusions. Unlike with FOIA’s nine categories of exemptions, agencies are not obligated to acknowledge the existence of any records described in subsection (c).

1. Criminal Investigations

Information that is related to an ongoing criminal investigation may be excluded when:

  • The person or organization under investigation does not know that they are under investigation; and
  • Disclosing that any records exist would interfere with the case.

2. Confidential Informants

When a law enforcement agency receives a FOIA request that includes the name or other identifier of an informant, and the agency has never officially confirmed that the person is an informant, it may exclude that information from its response to the request.

3. Classified Intelligence

FBI records are excluded if they involve “foreign intelligence or counterintelligence, or international terrorism,” and their existence is classified under Executive Order 13526.

If you need help with a Freedom of Information Request, please contact Bona Law, or call us at 858-964-4589.