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1 1 (December 22, 2023)

handle is hein.crs/govenuw0001 and id is 1 raw text is: Congressional Research Service Informing the IegisI9tive debate since 1914 Updated December 22, 2023 The Freedom of Information Act (FOIA): 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 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. Third, FOIA requires agencies to disclose all other covered records 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. Key Terms 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. Agency 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 include Congress, the federal courts, or territorial governments. Although not explicitly excluded, courts have held that the definition also does not include state governments. Further, although FOIA covers the Executive Office of the President (EOP), the Supreme Court held in Kissinger v. Reporters Committee for Freedom of the Press that the statute does not reach the President's immediate personal staff' or those EOP units whose sole function is to advise and assist the President. Agency Records Just as only agencies are subject to FOIA's disclosure requirements, only agency records are subject to disclosure under the act. See 5 U.S.C. § 552(a)(4)(B). FOIA defines records to include any information in any format, including electronic format. 5 U.S.C. § 552(f)(2)(A). 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. In DOJ v. Tax Analysts, the Court observed that 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. Any Person 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). Access to Information Under FOIA 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 generally applicable substantive rules and statements of general policy, 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 opinions and certain frequently requested records-unless the information has been promptly published and copies were made available for sale. Lastly, under 5 U.S.C. § 552(a)(3), any person may submit 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. Once an agency receives a valid FOIA request, it has twenty business days to make a determination about whether it will comply with the request and release any covered records that it has not made available under the aforementioned affirmative disclosure provisions. 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). In Citizens for Responsibility & Ethics in Washington v. FEC, the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) held that an agency must at least inform the requester of the scope of the documents that the agency will produce and the scope of the documents that the agency plans to withhold under any FOIA exemptions. An agency need not produce requested records when it makes its initial determination. 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.

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