Updated September 24, 2020
The Freedom of Information Act (FOIA): 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, except those made available through
FOIA sets forth a three-part system for disclosing
the 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 generally
of Information Act (FOIA): A Legal Overview, by Daniel J.
applicable substantive rules, 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
opinions 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 make a “determination” about
territorial governments. And although FOIA covers the
whether it will comply with the request. It must
Executive Office of the President (EOP), the Supreme
immediately notify the requester of its determination and
Court has held that the statute does not reach “the
the requester’s right to appeal an “adverse determination”
President’s immediate personal staff” or those EOP units
within the agency. In “unusual circumstances” an agency
“whose sole function is to advise and assist the President.”
may extend the twenty-day period by ten additional
Kissinger v. Reporters Committee for Freedom of the Press,
working days. 5 U.S.C. § 552(a)(6)(A), (B).
445 U.S. 136, 156 (1980).
To make a “determination,” the U.S. Court of Appeals for
“Agency Records”
the District of Columbia Circuit (D.C. Circuit) has held that
Just as only agencies are subject to FOIA’s disclosure
an “agency must at least inform the requester of the scope
requirements, only “agency records” are disclosed under the
of the documents that the agency will produce” and “the
act. See 5 U.S.C. § 552(a)(4)(B). FOIA does not define
scope of the documents that the agency plans to withhold
“agency records,” but the Supreme Court has held that the
under any FOIA exemptions.” An agency need not produce
term covers materials that were created or obtained by an
requested records when it makes its initial determination.
agency, and controlled by the agency at the time the FOIA
Instead, it may fulfill its responsibility to disclose records
request was made. An agency is in control of materials if
promptly after it indicates the scope of the records it will
“the materials have come into the agency’s possession in
disclose and the exemptions it will invoke. Citizens for
the legitimate conduct of its official duties.” DOJ v. Tax
Responsibility & Ethics in Washington v. FEC, 711 F.3d
Analysts, 492 U.S. 136, 144-45 (1989).
180, 186, 188-89 (D.C. Cir. 2013) (Kavanaugh, J.).
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The Freedom of Information Act (FOIA): 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 in or
court.
associated with financial reports created for or on behalf of
such agencies. 5 U.S.C. § 552(b)(8).
Exemptions
While FOIA’
Exemption 9 (Geological and Geophysical Information
s main purpose is to inform the public of the
and Data Concerning Wells) exempts from disclosure
federal government’s operations, the act excludes certain
“geological and geophysical information and data,
private and governmental interests from disclosure. FOIA
including maps, concerning wells.” 5 U.S.C. § 552(b)(9).
lists nine exemptions from its disclosure requirements that
permit, but do not require, agencies to withhold information
Exclusions
or records that are otherwise subject to release. 5 U.S.C. §
FOIA also excludes three classes of particular law
552(b). Agencies may only withhold information under an
enforcement records from its disclosure requirements.
exemption if disclosing the information is legally prohibited
or “the agency reasonably foresees that disclosure
These exclusions, listed in 5 U.S.C. § 552(c)(1)-(3), allow
would
harm an interest protected by an exemption.” 5 U.S.C. §
an agency, in response to a request for such records, to treat
the records as not subject to FOIA.
552(a)(8)(A)(i).
Judicial Review
Exemption 1 (National Defense or Foreign Policy) allows
FOIA grants federal district courts “jurisdiction to enjoin
agencies to withhold matters from disclosure when (1)
[an] agency from withholding agency records and to order
those matters are specifically authorized under an executive
the production of any agency records improperly withheld
order to be kept secret because of national defense or
from the complainant.” 5 U.S.C. § 552(a)(4)(B). The
foreign policy interests and (2) the matters are properly
agency has the burden of proving that it properly withheld
classified as such under the order. 5 U.S.C. § 552(b)(1).
information under a FOIA exemption. Courts review
Exemption 2 (Internal Personnel Rules and Practices)
agency withholding decisions de novo (i.e., no deference is
authorizes agencies to exempt from disclosure matters that
given to the agency’s decision that withholding was
are related solely to the agency’s internal personnel rules
proper).
and practices. 5 U.S.C. § 552(b)(2).
Selected Issues of Potential Interest for
Exemption 3 (Matters Exempted by Other Statutes)
Congress
allows agencies to withhold matters if they are “specifically
Although Congress is not subject to FOIA, the act may
exempted from disclosure by” certain categories of statutes
inform communications between the legislative branch and
described in the exemption. Statutes enacted after October
FOIA-covered entities. Under 5 U.S.C. § 552(d), an agency
28, 2009, that would otherwise be incorporated must cite
may not invoke a FOIA exemption to “withhold
Exemption 3 to qualify as a withholding statute. 5 U.S.C. §
information from Congress.” The executive branch has
552(b)(3).
interpreted this provision to apply to each house of
Congress and congressional committees, but it generally
Exemption 4 (Trade Secrets and Commercial or
treats individual Members’ requests for information as
Financial Information) authorizes agencies to exempt
subject to the same FOIA rules as requests from the public.
from disclosure trade secrets and privileged or confidential
This interpretation is not uniformly shared, with at least one
commercial or financial information obtained from a
federal appellate court interpreting § 552(d) to include
person. 5 U.S.C. § 552(b)(4).
individual Members acting in their official capacities. See
Murphy v. Army, 613 F.2d 1151, 1157 (D.C. Cir. 1979).
Exemption 5 (Inter- or Intra-Agency Memoranda or
Letters ) applies to inter- or intra-agency documents that
In addition, although Congress is under no obligation to
would normally be privileged from disclosure in civil
disclose its materials under FOIA, the D.C. Circuit has held
discovery, including documents protected by the
that whether a congressional document possessed by an
deliberative process, attorney-client, or attorney work-
agency is subject to disclosure under FOIA depends on
product privileges. 5 U.S.C. § 552(b)(5).
whether Congress clearly expressed its intention to retain
Exemption 6 (Personnel, Medical, and Similar Files)
control over the document. See ACLU v. CIA, 823 F.3d 655,
exempts personnel, medical, and “similar” files when
662-63 (D.C. Cir. 2016).
disclosure “would constitute a clearly unwarranted invasion
of personal privacy.” 5 U.S.C. § 552(b)(6).
Daniel J. Sheffner, Legislative Attorney
IF11450


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The Freedom of Information Act (FOIA): An Introduction


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