What is FOIA?

The Freedom of Information Act. Congressman John Moss from California championed the original Freedom of Information Act after the fallout from the Cold War led to a steep rise in government secrecy. The bill was passed around until the Senate eventually passed a version of FOIA in 1966. This was after failing to find co-sponsors for several years. It wasn’t until after the Watergate Scandal in 1974 that FOIA was amended to become the powerful law it is today.

Under FOIA, federal records from any agencies may be requested except for records that are protected from disclosure by any of nine exemptions or three exclusions. These are described below, from foia.gov:

• Exemption 1: Information that is classified to protect national security.
• Exemption 2: Information related solely to the internal personnel rules and practices of an agency.
• Exemption 3: Information that is prohibited from disclosure by another federal law.
• Exemption 4: Trade secrets or commercial or financial information that is confidential or privileged.
• Exemption 5: Privileged communications within or between agencies, including those protected by the:

1. 1. Deliberative Process Privilege (provided the records were created less than 25 years before the date on which they were requested)
   2. Attorney-Work Product Privilege
   3. Attorney-Client Privilege

• Exemption 6: Information that, if disclosed, would invade another individual’s personal privacy.
• Exemption 7: Information compiled for law enforcement purposes that:

1. 1. 7(A). Could reasonably be expected to interfere with enforcement proceedings
   2. 7(B). Would deprive a person of a right to a fair trial or an impartial adjudication
   3. 7(C). Could reasonably be expected to constitute an unwarranted invasion of personal privacy
   4. 7(D). Could reasonably be expected to disclose the identity of a confidential source
   5. 7(E). Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law
   6. 7(F). Could reasonably be expected to endanger the life or physical safety of any individual

• Exemption 8: Information that concerns the supervision of financial institutions.
• Exemption 9: Geological information on wells.

The right of access is enforceable in court. Furthermore, you can specify the format you wish to receive the records in.

In most cases, the agency will respond to the FOIA request within the standard time limit, which is approximately one month. The general rule of thumb is more complex requests will take longer to process than more simple requests.

However, the time it takes for agencies to respond to your request depends on other factors, such as the volume of material requested and backlogs that may be pending. If an agency requires an extension of time, it will notify you in writing and give you an opportunity to modify or limit the scope of your request.

On December 14, 2020, Stephen M. Kohn lead a Whistleblower Network News webinar demonstrating how to use the Freedom of Information Act (FOIA).

The webinar goes over:

• How to make and submit a FOIA request
• What information is covered under FOIA
• How to have the request fee waived and appeal a denial of your request

Kohn is an expert at navigating FOIA and has filed thousands of FOIA requests and litigated many successful FOIA appeals over the last four decades. For more information on FOIA and to download the presentation, please visit our FOIA resources page.