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1 1 (March 9, 2020)

handle is hein.crs/govcaor0001 and id is 1 raw text is: FF.ri E~$~ & March 9, 2020 The Freedom of Information Act: An Introduction The Freedom of Information Act (FOIA), codified at 5 U.S.C. § 552, provides the public a right to access federal agency information. Subject to statutorily enumerated exemptions and exclusions, agencies must disclose records covered by the act in one of three ways. First, FOIA directs agencies to publish certain important government materials in the Federal Register. Second, on a proactive basis, agencies must electronically disclose certain agency information. And third, FOIA requires agencies to disclose all covered records that are not available through the aforementioned affirmative disclosure provisions to individuals, corporations, and other entities on request. This In Focus provides a brief introduction to FOIA. For a more detailed discussion, see CRS Report R46238, The Freedom of Information Act (FOIA): A Legal Overview, by Daniel J. Sheffner. Three terms inform FOIA's general scope: agency, agency records, and any person. Their definitions effectively determine which entities must comply with FOIA, what materials those entities must disclose, and to whom FOIA grants the right to request and receive records. Only agencies are required to disclose records under FOIA. An agency includes any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency. 5 U.S.C. § 552(f)(1). This definition does not encompass all federal government components, including Congress, the federal courts, or territorial governments. And although FOIA covers the Executive Office of the President, the Supreme Court has held that the statute does not reach his immediate personal staff' or those office units whose sole function is to advise and assist the President. Kissinger v. Reporters Committee for Freedom of the Press, 445 U.S. 136, 156 (1980). Just as only agencies are subject to FOIA's disclosure requirements, only agency records are disclosed under the act. See 5 U.S.C. § 552(a)(4)(B). FOIA does not define agency records, but the Supreme Court has held that the term covers materials that were created or obtained by an agency, and controlled by the agency at the time the FOIA request was made. An agency is in control of materials if the materials have come into the agency's possession in the legitimate conduct of its official duties. DOJ v. Tax Analysts, 492 U.S. 136, 144-45 (1989). FOIA directs agencies to disclose covered agency records to any person upon request. 5 U.S.C. § 552(a)(3)(A). A person is an individual, partnership, corporation, association, or public or private organization other than an agency. 5 U.S.C. § 551(2). Unc r F 0N FOIA sets forth a three-part system for disclosing government information. First, under 5 U.S.C. § 552(a)(1), an agency must publish certain government information, such as substantive and procedural regulations, in the Federal Register. Second, under 5 U.S.C. § 552(a)(2) (often called the reading room provision), an agency must make available for public inspection in an electronic format a separate set of information-including final agency adjudicative decisions and certain previously released records-unless the information has been promptly published and copies were made available for sale. Lastly, under 5 U.S.C. § 552(a)(3), an agency must, after receiving a request, release covered records the agency has not made available under the aforementioned affirmative disclosure provisions. If an agency receives a request that reasonably describes the requested records and complies with the agency's published rules governing the time, place, fees (if any), and procedures to be followed, the agency must promptly release the requested records. Once an agency receives a valid FOIA request, it has twenty business days to determine whether it will comply with the request. It must immediately notify the requester of its determination and the requester's right to appeal an adverse determination within the agency. In unusual circumstances an agency may extend the twenty-day period by ten additional working days. 5 U.S.C. § 552(a)(6)(A), (B); see Judicial Watch, Inc v. DHS, 895 F.3d 770, 787 (D.C. Cir. 2018). The U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) has held that an agency need not produce requested records when it makes its initial determination about whether it will comply with the request. Instead, it may fulfill its responsibility to disclose records promptly after it indicates the scope of the records it will disclose and the exemptions it will invoke. Citizens for Responsibility & Ethics in Washington v. FEC, 711 F.3d 180, 182-83, 188 (D.C. Cir. 2013) (Kavanaugh, J.). .O 'T gognpo goo g , q 's a X 11LULANJILiN,

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