March 9, 2020
The Freedom of Information Act: An Introduction
The Freedom of Information Act (FOIA), codified at
“Any Person”
5 U.S.C. § 552, provides the public a right to access federal
FOIA directs agencies to disclose covered agency records
agency information. Subject to statutorily enumerated
to “any person” upon request. 5 U.S.C. § 552(a)(3)(A). A
exemptions and exclusions, agencies must disclose records
“person” is “an individual, partnership, corporation,
covered by the act in one of three ways. First, FOIA directs
association, or public or private organization other than an
agencies to publish certain important government materials
agency.” 5 U.S.C. § 551(2).
in the Federal Register. Second, on a proactive basis,
agencies must electronically disclose certain agency
Access to Government Information
information. And third, FOIA requires agencies to disclose
Under FOIA
all covered records that are not available through the
FOIA sets forth a three-part system for disclosing
aforementioned affirmative disclosure provisions to
government information.
individuals, corporations, and other entities on request. This
In Focus provides a brief introduction to FOIA. For a more
First, under 5 U.S.C. § 552(a)(1), an agency must publish
detailed discussion, see CRS Report R46238, The Freedom
certain government information, such as substantive and
of Information Act (FOIA): A Legal Overview, by Daniel J.
procedural regulations, in the Federal Register.
Sheffner.
Second, under 5 U.S.C. § 552(a)(2) (often called the
Key Terms
“reading room provision”), an agency must “make available
Three terms inform FOIA’s general scope: “agency,”
for public inspection in an electronic format” a separate set
“agency records,” and “any person.” Their definitions
of information—including final agency adjudicative
effectively determine which entities must comply with
decisions and certain previously released records—unless
FOIA, what materials those entities must disclose, and to
the information has been promptly published and copies
whom FOIA grants the right to request and receive records.
were made available for sale.
“Agency”
Lastly, under 5 U.S.C. § 552(a)(3), an agency must, after
Only agencies are required to disclose records under FOIA.
receiving a request, release covered records the agency has
An “agency” includes “any executive department, military
not made available under the aforementioned affirmative
department, Government corporation, Government
disclosure provisions. If an agency receives a request that
controlled corporation, or other establishment in the
reasonably describes the requested records and complies
executive branch of the Government (including the
with the agency’s published rules governing “the time,
Executive Office of the President), or any independent
place, fees (if any), and procedures to be followed,” the
regulatory agency.” 5 U.S.C. § 552(f)(1).
agency must promptly release the requested records.
This definition does not encompass all federal government
Once an agency receives a valid FOIA request, it has
components, including Congress, the federal courts, or
twenty business days to determine whether it will comply
territorial governments. And although FOIA covers the
with the request. It must immediately notify the requester of
Executive Office of the President, the Supreme Court has
its determination and the requester’s right to appeal an
held that the statute does not reach his “immediate personal
“adverse determination” within the agency. In “unusual
staff” or those office units “whose sole function is to advise
circumstances” an agency may extend the twenty-day
and assist the President.” Kissinger v. Reporters Committee
period by ten additional working days. 5 U.S.C. §
for Freedom of the Press, 445 U.S. 136, 156 (1980).
552(a)(6)(A), (B); see Judicial Watch, Inc v. DHS, 895 F.3d
770, 787 (D.C. Cir. 2018).
“Agency Records”
Just as only agencies are subject to FOIA’s disclosure
The U.S. Court of Appeals for the District of Columbia
requirements, only “agency records” are disclosed under the
Circuit (D.C. Circuit) has held that an agency need not
act. See 5 U.S.C. § 552(a)(4)(B). FOIA does not define
produce requested records when it makes its initial
“agency records,” but the Supreme Court has held that the
determination about whether it will comply with the
term covers materials that were created or obtained by an
request. Instead, it may fulfill its responsibility to disclose
agency, and controlled by the agency at the time the FOIA
records promptly after it indicates the scope of the records it
request was made. An agency is in control of materials if
will disclose and the exemptions it will invoke. Citizens for
“the materials have come into the agency’s possession in
Responsibility & Ethics in Washington v. FEC, 711 F.3d
the legitimate conduct of its official duties.” DOJ v. Tax
180, 182-83, 188 (D.C. Cir. 2013) (Kavanaugh, J.).
Analysts, 492 U.S. 136, 144-45 (1989).
https://crsreports.congress.gov

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The Freedom of Information Act: An Introduction
Before challenging an agency’s nondisclosure decision in
Exemption 7 (Law Enforcement Records or
federal court, a requester typically must exhaust any
Information) applies to records “compiled for law
remedies that an agency affords. Generally, a requester has
enforcement purposes,” but only if disclosure would or
not exhausted administrative remedies unless the requester
could reasonably be expected to result in certain specified
has submitted a valid FOIA request to the agency and
harms. 5 U.S.C. § 552(b)(7).
internally appealed the agency’s adverse decision. But if the
agency does not adhere to the FOIA deadlines, a requester
Exemption 8 (Financial Institution Reports) protects
is deemed to have constructively exhausted his
matters in or associated with financial reports created by
administrative remedies and may seek review in federal
agencies that regulate financial institutions, or are in or
court. That said, if the agency belatedly responds to a
associated with financial reports created for or on behalf of
request before the requester files suit, the requester must
such agencies. 5 U.S.C. § 552(b)(8).
internally appeal the adverse determination before seeking
Exemption 9 (Geological and Geophysical Information
recourse in federal court.
and Data Concerning Wells) exempts from disclosure
Exemptions
“geological and geophysical information and data,
While FOIA’
including maps, concerning wells.” 5 U.S.C. § 552(b)(9).
s main purpose is to inform the public of the
federal government’s operations, the act excludes certain
Exclusions
private and governmental interests from disclosure. FOIA
FOIA also excludes three classes of especially sensitive law
lists nine exemptions from its disclosure requirements that
enforcement records from its disclosure requirements.
permit, but do not require, agencies to withhold information
These exclusions, listed in 5 U.S.C. § 552(c)(1)-(3), allow
or records that are otherwise subject to release. 5 U.S.C. §
an agency, in response to a request for such records, to treat
552(b). Agencies may only withhold information under an
the records as not subject to FOIA.
exemption if disclosing the information is legally prohibited
or “the agency reasonably foresees that disclosure would
Judicial Review
harm an interest protected by an exemption.” 5 U.S.C. §
FOIA grants federal district courts “jurisdiction to enjoin
552(a)(8)(A)(i).
[an] agency from withholding agency records and to order
the production of any agency records improperly withheld
Exemption 1 (National Defense or Foreign Policy) allows
from the complainant.” 5 U.S.C. § 552(a)(4)(B). The
agencies to withhold matters from disclosure when (1)
agency has the burden of proving that it properly withheld
those matters are specifically authorized under an executive
information under a FOIA exemption. Courts review
order to be kept secret because of national defense or
agency withholding decisions de novo (i.e., no deference is
foreign policy interests and (2) the matters are properly
given to the agency’s decision that withholding was
classified as such under the order. 5 U.S.C. § 552(b)(1).
proper).
Exemption 2 (Internal Personnel Rules and Practices)
Selected Issues of Potential Interest for
authorizes agencies to exempt from disclosure matters that
Congress
are related solely to the agency’s internal personnel rules
and practices. 5 U.S.C. § 552(b)(2).
Although Congress is not subject to FOIA, the act may
inform communications between the legislative branch and
Exemption 3 (Matters Exempted by Other Statutes)
FOIA-covered entities. Under 5 U.S.C. § 552(d), an agency
allows agencies to withhold matters if they are “specifically
may not invoke a FOIA exemption to “withhold
exempted from disclosure by” certain categories of statutes
information from Congress.” The executive branch has
described in the exemption. Statutes enacted after October
interpreted this provision to apply to each house of
28, 2009, that would otherwise be incorporated must cite
Congress and congressional committees, but it generally
Exemption 3 to qualify as a withholding statute. 5 U.S.C. §
treats individual Members’ requests for information as
552(b)(3).
subject to the same FOIA rules as requests from the public.
This interpretation is not uniformly shared, with at least one
Exemption 4 (Trade Secrets and Commercial or
federal appellate court interpreting § 552(d) to include
Financial Information) authorizes agencies to exempt
individual Members acting in their official capacities. See
from disclosure trade secrets and privileged or confidential
Murphy v. Army, 613 F.2d 1151, 1157 (D.C. Cir. 1979).
commercial or financial information obtained from a
person. 5 U.S.C. § 552(b)(4).
In addition, although Congress is under no obligation to
disclose its materials under FOIA, the D.C. Circuit has held
Exemption 5 (Inter- or Intra-Agency Memoranda or
that whether a congressional document possessed by an
Letters ) applies to inter- or intra-agency documents that
agency is subject to disclosure under FOIA depends on
would normally be privileged from disclosure in civil
whether Congress clearly expressed its intention to retain
discovery, including documents protected by the
control over the document. See ACLU v. CIA, 823 F.3d 655,
deliberative process, attorney-client, or attorney work-
662-63 (D.C. Cir. 2016).
product privileges. 5 U.S.C. § 552(b)(5).
Exemption 6 (Personnel, Medical, and Similar Files)
Daniel J. Sheffner, Legislative Attorney
exempts personnel, medical, and “similar files” when
disclosure “would constitute a clearly unwarranted invasion
IF11450
of personal privacy.” 5 U.S.C. § 552(b)(6).
https://crsreports.congress.gov

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The Freedom of Information Act: An Introduction


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https://crsreports.congress.gov | IF11450 · VERSION 1 · NEW

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