The Freedom of Information Act (FOIA): An Introduction

The Freedom of Information Act (FOIA): An Introduction

Updated December 22, 2023
The Freedom of Information Act (FOIA): An Introduction
The Freedom of Information Act (FOIA), codified at
agency’s possession in the legitimate conduct of its official
5 U.S.C. § 552, provides the public a right to access federal
duties.”
agency information. Subject to enumerated exemptions and
exclusions, agencies must disclose records covered by the
“Any Person”
act in one of three ways. First, FOIA directs agencies to
FOIA directs agencies to disclose covered agency records
publish certain important government materials in the
to “any person” upon request. 5 U.S.C. § 552(a)(3)(A). A
Federal Register. Second, on a proactive basis, agencies
“person” is “an individual, partnership, corporation,
must electronically disclose certain agency information.
association, or public or private organization other than an
Third, FOIA requires agencies to disclose all other covered
agency.” 5 U.S.C. § 551(2).
records to individuals, corporations, and other entities on
request. This In Focus provides a brief introduction to
Access to Information Under FOIA
FOIA. For a more detailed discussion, see CRS Report
FOIA sets forth a three-part system for disclosing
R46238, The Freedom of Information Act (FOIA): A Legal
government information.
Overview, by Daniel J. Sheffner.
First, under 5 U.S.C. § 552(a)(1), an agency must publish
Key Terms
certain government information, such as generally
Three terms inform FOIA’s general scope: “agency,”
applicable substantive rules and statements of general
“agency records,” and “any person.” Their definitions
policy, in the Federal Register.
effectively determine which entities must comply with
FOIA, what materials those entities must disclose, and to
Second, under 5 U.S.C. § 552(a)(2) (often called the
whom FOIA grants the right to request and receive records.
“reading room provision”), an agency must “make available
for public inspection in an electronic format” a separate set
“Agency”
of information—including final agency adjudicative
Only agencies are required to disclose records under FOIA.
opinions and certain frequently requested records—unless
An “agency” includes “any executive department, military
the information has been promptly published and copies
department, Government corporation, Government
were made available for sale.
controlled corporation, or other establishment in the
executive branch of the Government (including the
Lastly, under 5 U.S.C. § 552(a)(3), any person may submit
Executive Office of the President), or any independent
a request that reasonably describes the requested records
regulatory agency.” 5 U.S.C. § 552(f)(1).
and complies with the agency’s published rules governing
“the time, place, fees (if any), and procedures to be
This definition does not include Congress, the federal
followed.” Once an agency receives a valid FOIA request,
courts, or territorial governments. Although not explicitly
it has twenty business days to make a “determination”
excluded, courts have held that the definition also does not
about whether it will comply with the request and release
include state governments. Further, although FOIA covers
any covered records that it has not made available under the
the Executive Office of the President (EOP), the Supreme
aforementioned affirmative disclosure provisions. It must
Court held in Kissinger v. Reporters Committee for
immediately notify the requester of its determination and
Freedom of the Press 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
working days. 5 U.S.C. § 552(a)(6)(A), (B).
“Agency Records”
Just as only agencies are subject to FOIA’s disclosure
In Citizens for Responsibility & Ethics in Washington v.
requirements, only “agency records” are subject to
FEC, the U.S. Court of Appeals for the District of
disclosure under the act. See 5 U.S.C. § 552(a)(4)(B). FOIA
Columbia Circuit (D.C. Circuit) held that an “agency must
defines “records” to include “any information” in “any
at least inform the requester of the scope of the documents
format, including electronic format.” 5 U.S.C.
that the agency will produce” and “the scope of the
§ 552(f)(2)(A). FOIA does not define “agency records,” but
documents that the agency plans to withhold under any
the Supreme Court has held that the term covers materials
FOIA exemptions.” An agency need not produce requested
that were created or obtained by an agency, and controlled
records when it makes its initial determination. Instead, it
by the agency at the time the FOIA request was made. In
may fulfill its responsibility to disclose records promptly
DOJ v. Tax Analysts, the Court observed that an agency is
after it indicates the scope of the records it will disclose and
in control of materials if “the materials have come into the
the exemptions it will invoke.
https://crsreports.congress.gov

The Freedom of Information Act (FOIA): An Introduction
Before challenging an agency’s nondisclosure decision in
Exemption 8 (Financial Institution Reports) protects
federal court, a requester typically must exhaust any
matters in or associated with financial reports created by
remedies that an agency affords. Generally, a requester has
agencies that regulate financial institutions, or in or
not exhausted administrative remedies unless the requester
associated with financial reports created for or on behalf of
has submitted a valid FOIA request to the agency and
such agencies.
internally appealed the agency’s adverse decision. If the
agency does not adhere to the FOIA deadlines, however, a
Exemption 9 (Geological and Geophysical Information
requester is deemed to have constructively exhausted his
and Data Concerning Wells) exempts from disclosure
administrative remedies and may seek review in federal
“geological and geophysical information and data,
court.
including maps, concerning wells.”
Exemptions
Exclusions
While FOIA’s main purpose is to inform the public of the
FOIA also excludes three classes of particular law
federal government’s operations, the act exempts certain
enforcement records from its disclosure requirements.
private and governmental information from disclosure.
These exclusions, listed in 5 U.S.C. § 552(c)(1)-(3), allow
FOIA lists nine exemptions from its disclosure
an agency, in response to a request for such records, to treat
requirements that permit, but do not require, agencies to
the records as not subject to FOIA.
withhold information or records that are otherwise subject
Judicial Review
to release. The exemptions are codified at 5 U.S.C.
§ 552(b)(1)-(9). Agencies may withhold information under
FOIA grants federal district courts “jurisdiction to enjoin
an exemption only if disclosing the information is legally
[an] agency from withholding agency records and to order
prohibited or the agency reasonably foresees that disclosure
the production of any agency records improperly withheld
would harm an “interest” protected by an exemption.
from the complainant.” The agency has the burden of
proving that it properly withheld information under a FOIA
Exemption 1 (National Defense or Foreign Policy) allows
exemption. Courts review agency withholding decisions de
agencies to withhold matters from disclosure when
novo (i.e., no deference is given to the agency’s decision
(1) those matters are specifically authorized under an
that withholding was proper).
executive order to be kept secret because of national
Selected Issues of Potential Interest for
defense or foreign policy interests and (2) the matters are
Congress
properly classified as such under the order.
Although Congress is not subject to FOIA, the act may
Exemption 2 (Internal Personnel Rules and Practices)
inform communications between the legislative branch and
authorizes agencies to exempt from disclosure matters that
FOIA-covered agencies. Under 5 U.S.C. § 552(d), an
are related solely to the agency’s internal personnel rules
agency may not invoke a FOIA exemption to “withhold
and practices.
information from Congress.” The executive branch has
interpreted this provision to apply to each house of
Exemption 3 (Matters Exempted by Other Statutes)
Congress and congressional committees, but it generally
allows agencies to withhold matters if they are “specifically
treats individual Members’ requests for information as
exempted from disclosure by” other statutes. Statutes
subject to the same FOIA rules as requests from the public.
enacted after October 28, 2009, must cite Exemption 3 to
This interpretation is not uniformly shared, with at least one
qualify as a withholding statute.
federal appellate court interpreting § 552(d) to include
individual Members acting in their official capacities. See
Exemption 4 (Trade Secrets and Commercial or
CRS In Focus IF12301, Congress and the Freedom of
Financial Information) authorizes agencies to exempt
Information Act (FOIA), by Benjamin M. Barczewski and
from disclosure trade secrets and privileged or confidential
Meghan M. Stuessy.
commercial or financial information obtained from a
person.
In addition, although Congress is under no obligation to
Exemption 5 (Inter- or Intra-Agency Memoranda or
disclose its materials under FOIA, the D.C. Circuit
Letters) applies to inter- or intra-agency documents that
recognized in ACLU v. CIA that an agency may be required
would normally be privileged from disclosure in civil
to disclose a congressional document that it possesses
discovery, including documents protected by the
unless Congress clearly expressed its intention to retain
deliberative process, attorney-client, or attorney work-
control over the document.
product privileges.
Congress has also shown interest in addressing agency
Exemption 6 (Personnel, Medical, and Similar Files)
compliance with FOIA’s statutory deadlines, as agencies
exempts personnel, medical, and “similar” files when
often find it difficult to comply with FOIA’s 20-day
disclosure “would constitute a clearly unwarranted invasion
deadline due to the high volume of requests. Lawmakers
of personal privacy.”
have also considered the perceived overuse and misuse of
certain FOIA exemptions.
Exemption 7 (Law Enforcement Records or
Information) applies to records “compiled for law
enforcement purposes” but only if disclosure would or
Benjamin M. Barczewski, Legislative Attorney
could reasonably be expected to result in certain specified
IF11450
harms.
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The Freedom of Information Act (FOIA): An Introduction

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https://crsreports.congress.gov | IF11450 · VERSION 3 · UPDATED