Agencies Subject to FOIA

The Freedom of Information Act (FOIA) is applicable to certain governmental agencies.  These agencies have a duty to disclose governmental records and information permitted by the statute.

Under the FOIA, the term “agency” includes each authority of the U.S. government which may or may not be independent of any other governmental agency.  Any executive department, military department, government corporation, government controlled corporation, or other establishment in the executive branch of the government comes under the definition of agency[i].  The executive office of the President and any independent regulatory agency are agencies subject to the provisions of FOIA[ii].

However, U.S. courts, Congress, governments of the U.S. territories. and the government of the District of Columbia are not classified as agencies as defined in the FOIA[iii].  FOIA is applicable to the executive branch and independent agencies under the federal government.  As there are numerous organizations under the government, a court has to decide the applicability of FOIA to these organizations after examining the nature of each body in each context.

In analyzing whether a body or organization comes under the definition of agency subject to FIOA, a court considers various factors:

  • whether the structure and operation of an entity is subject to considerable federal control[iv];
  • whether the authority performs a governmental or decision making function;
  • whether the authority controls public interested information.

An agency is separated from its sub parts because it is vested with power to make final decisions or is independent.  Therefore, an advisory committee is not an agency.  The FOIA is applicable to an agency under a larger cabinet department.  Individual governmental officials do not come under agency.  Thus a former president does not qualify as an agency.

As the federal FOIA is applicable to federal agencies only, governments of state or its employees are not subject to the federal FOIA[v].  Actions against state or local officials should be moved under the state acts[vi].  The provisions of state FOIA differ from state to state.  In certain statutes, agency is referred to those public bodies to which duties are delegated by legislative or executive action.

State public records disclosure acts may apply to all municipalities in the state or it may be limited only to state-regulated agencies.  Under state acts, various types of state government officers or bodies come under the term ‘agency’.  A few examples are a governor, insurance department, worker’s compensation state authority, civil service commission, state medical board, county sheriff, worker’s compensation state authority.  The Red Cross is not an agency for the purposes of the FOIA[vii].

Generally, legislative bodies are not subject to freedom of information acts because they are exempted from disclosure of their records.  Therefore, Congress and state legislatures are exempted from disclosure of their records.  Congressional documents in possession of other agencies may also be exempted from disclosure.  Members of Congress are not considered agencies under FOIA[viii].  But the working papers of an auditor who performs audit for the legislature are not exempted from disclosure under FOIA.

Advisers to elected officials usually are not subject to the provisions of FOIA.  Although the executive office of the president is an agency under FOIA, neither the White House office which includes the President and his/her aides, nor the office of the President is subject to FOIA.  Therefore, a presidential adviser is not subject to FOIA because s/he is neither a cabinet member nor a member of the executive office of the President[ix].  But an Attorney General even if s/he is advising the President is subject to FOIA.  This is due to the fact that s/he is an official of the Justice Department which is an agency subject to FOIA.  Even though the Office of Science and technology advises the President, it is subject to FOIA because it is a separate administrative unit under federal control.  A local advisory committee that screens potential judicial nominees is not required to disclose its records under a state act.

A government corporation like The Federal Home Loan Mortgage Corporation is an “agency” for the purposes of the Freedom of Information Act[x].  Government corporations or government controlled private entities are subject to FOIA if they are under substantial government control.  Certain public benefit corporations or authorities are also considered agencies under state acts.

A public hospital is considered an agency for the purpose of state acts[xi].  The requirements for a hospital to be qualified as an agency are that it has to be public hospital rendering public service to the local people and supported by public taxation.  A hospital is not subject to FOIA if no governmental entity has any control over the operation of the hospital.

Public school or university boards constitute an agency under state laws with regard to disclosure of public records.  The boards of trustees of community colleges may be considered public agencies pursuant to a statute which declares in substance that such organization performs an essential governmental function.  Usually a state university is considered an agency for the purpose of a public records disclosure statute. 

Generally, court records are not subject to the federal FOIA and to state acts[xii].  But in certain states an exception to this rule exists.  Where a state legislature has not laid out rules with regard to the type of court records that are available to public under the applicable state law, the rules of a court will preside.

The federal FOIA exempts federal courts from disclosing their records and they are not liable to disclose confidentiality orders issued in an action in which a federal agency is a party.  But certain state statutes require courts to disclose certain court records to public.  The probation department as an arm of the U.S. district court is exempt from disclosure of its records[xiii].

[i] 5 U.S.C.A. § 552(f)(1).

[ii] United States v. Murdock, 548 F.2d 599 (5th Cir. Ala. 1977).

[iii] 5 U.S.C.A. § 551(1).

[iv] Rocap v. Indiek, 539 F.2d 174, 1976 U.S. App. LEXIS 8451.

[v] Martinson v. Violent Drug Traffickers Project, 1996 U.S. Dist. LEXIS 10738.

[vi] Mamarella v. County of Westchester, 898 F. Supp. 236, 1995 U.S. Dist. LEXIS 13995.

[vii] Irwin Memorial Blood Bank of San Francisco Medical Soc. v. American Nat’l Red Cross, 640 F.2d 1051, 1981 U.S. App. LEXIS 18868.

[viii] Dow Jones & Co. v. DOJ, 908 F.2d 1006, 1990 U.S. App. LEXIS 12205.

[ix] Kissinger v. Reporters Comm. for Freedom of Press, 445 U.S. 136 (U.S. 1980).

[x] Rocap v. Indiek, 539 F.2d 174, 1976 U.S. App. LEXIS 8451.

[xi] St. Michael’s Convalescent Hospital v. California, 643 F.2d 1369, 1981 U.S. App. LEXIS 13698.

[xii] United States v. Chandler, 220 F. Supp. 2d 165, 2002 U.S. Dist. LEXIS 17633.

[xiii] Id.

Inside Agencies Subject to FOIA