Making a FOIA Request

The Freedom of Information Act  (FOIA) contemplates full agency disclosure unless information is specifically exempted.  Every  federal agency is duty bound to provide, on request, records in any format requested by the person if the record is readily reproducible by the agency in that particular format.

Except in certain cases involving claims of privilege, the identity of the party requesting disclosure of information has no bearing on the merits of such person’s FOIA request.  The legislative intent of the Act is disclosure and not secrecy and hence all FOIA requestors are presumed to have equal, and equally qualified, right to information[i].

If the agency has provided alternative form of access to information to the public, it need not respond to FOIA request for copies of documents[ii].  Freedom of Information Act does not require agency to establish mailing list to automatically disseminate agency records or information and the Act only gives right of access to agency records already in existence.  The FOIA statute mandates that those documents containing information relating to the structure, operation and decision-making procedure of various governmental agencies shall be disclosed.

An “individual may obtain access only to records written or transcribed to perpetuate knowledge or events, and agency is not required to answer questions disguised as Freedom of Information Act requests or create documents or opinions in response to individual’s request for information[iii].”

An individuals’ right to inspect any public record is not absolute and hence certain documents considered privileged are not available for public inspection.  The agency has the right to withhold documents concerning strategic information pertaining to national security, etc.  Even if the requester had an opportunity to view the records at a prior time does not preclude the person’s right to request the documents at a subsequent time[iv].

FOIA grants every citizen equal rights to request information and the individual’s need, purpose, or motivation does not affect such right.  Thus, a member of the public with a special interest in the information and one with a general interest are considered to be on similar footing by the statute[v].  A person requesting information has no obligation to provide reason for his/her request or show any special or personal interest in inspecting a public record[vi].

Every citizen has a right to information and the fact that the person seeking the information happens to be an employee of a nonresident corporation and may share the information with his/her employer do not abrogate such person’s right to seek information[vii].

The scope of the Act is quite wide and encompasses even public officers acting in their personal rather than official capacity.  Thus, courts have held that a county prosecutor can seek information in the capacity of an individual and even one governmental agency may make a request to another, information needed to meet a governmental purpose.  Courts are of the view that while the interests of the individual must be balanced against those of the public, and such balance should be titled towards disclosure[viii].  The Act is more focused on the public interest in disclosure, not the private interest of a requesting party.

A written request for information shall reasonably describe identifiable nonexempt records with sufficient specificity before the agency is placed under a duty to respond to such request.  The request must have sufficient clarity to enable the concerned agency to locate the information.  Courts have held that the duty of the agency to identify reasonably segregable portions of records which must be produced and the obligation of the trial judge to conduct an in camera inspection presuppose a focused and detailed request[ix].  However, this does not mean that the request should reference individual documents by date, author, and subject matter[x].

An agency cannot evade a request by merely claiming that the request will require the review of thousands of records.  This is because the very purpose of the stipulation that the information sought shall be specifically designated is to enable the agency to locate the records in question.  Thus, the duty falls upon the agency to establish that the descriptions are insufficient for purposes of locating and identifying the requested documents before denying a request for reasons of over breadth[xi].  If a request is denied for lack of sufficient description or difficulty in locating the files, the requestor may either revise the description or file a suit.  In the event of filing of suit, the trial court will consider the sole issue whether the records were sufficiently described and the burden of justifying nondisclosure of the requested records is upon the agency[xii].

Generally, blanket requests are not favored and the request for disclosure shall be accompanied by a reasonable description enabling the government employee to locate the requested records.  Courts have held that identification by class is not enough.  This is particularly true in cases where information is not made available to the public under the agency’s published rules.  In such cases, individuals must request the desired records with greater descriptive concentration[xiii]. 

Federal agencies have published the offices and officers from whom the public may obtain information[xiv].  According to the Public Records Act, a request for records shall be made to the person responsible for keeping the record within the governmental unit in which such records are maintained. 

 

[i] United States Dep’t of Defense v. Federal Labor Relations Auth., 510 U.S. 487 (U.S. 1994).

[ii] Martinez v. Bureau of Prisons, 444 F.3d 620 (D.C. Cir. 2006).

[iii] Hudgins v. IRS, 620 F. Supp. 19 (D.D.C. 1985).

[iv] Creel v. Sheriff of Medina County, 751 S.W.2d 645 (Tex. App. San Antonio 1988).

[v] NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (U.S. 1975).

[vi] George v. Record Custodian, 169 Wis. 2d 573 (Wis. Ct. App. 1992).

[vii] Atchison v. Hospital Authority of St. Marys, 245 Ga. 494 (Ga. 1980).

[viii] Board of Education v. Lexington-Fayette Urban County Human Rights Com., 625 S.W.2d 109 (Ky. Ct. App. 1981).

[ix] Hines v. District of Columbia Bd. of Parole, 567 A.2d 909 (D.C. 1989).

[x] State Bd. of Equalization v. Superior Court, 10 Cal. App. 4th 1177 (Cal. App. 3d Dist. 1992).

[xi] Johnson Newspaper Corp. v. Stainkamp, 94 A.D.2d 825 (N.Y. App. Div. 3d Dep’t 1983).

[xii] Kincaid v. Department of Corrections, 180 Mich. App. 176 (Mich. Ct. App. 1989).

[xiii] Sears v. Gottschalk, 357 F. Supp. 1327 (E.D. Va. 1973).

[xiv] 5 U.S.C.A. § 552(a)(1)(A).


Inside Making a FOIA Request