The Freedom of Information Act, enacted in 1966, provides that any person
has a right, enforceable in court, of access to federal agency records,
except to the extent that such records are protected from disclosure by
one of nine exemptions or by one of three special law enforcement records
How to File a FOIA Request
FREQUENTLY ASKED QUESTIONS
Do I need to complete a form?
How does NIST process FOIA requests?
How long will it take NIST to respond to my request?
What kinds of records can NIST withhold
and on what grounds can the agency deny a request?
Exemption 1 - Classified documents
How do I know if NIST has withheld records from me?
What if I think NIST has withheld records and should not have?
If your appeal is denied, you can file a judicial appeal in the U.S. District Court where you live, in the district where the documents are located, or in the District of Columbia.
What happens if NIST does not have the records I want?
If our FOIA Office staff know that another agency has the records you want, they will refer you to that agency.
What are the fees for filing a FOIA request?
If you are concerned about costs, ask for a cost estimate in your letter. FOIA staff will let you know roughly what your fees will be before they process your request, and they will give you a chance to approve these fees.
How can I reach the NIST FOIA Office?
The NIST FOIA Reading Room is located in Building 101, Room B25. To access the room contact firstname.lastname@example.org.
The bracketed [ ] areas explain how to use these sample letters to write your own letter.
Freedom of Information Act Request Letter
Freedom of Information Act Appeal Letter
Exemption 1 applies to matters that are "(A) specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive Order."
Executive Order 12356, issued by President Reagan, requires agency records to be classified if their disclosure "reasonably could be expected to cause damage to the national security." Such records, if "in fact properly classified" according to the substantive and procedural rules of the Executive Order, are exempt from mandatory disclosure under the FOIA.
Requesters should note that courts have upheld agencies decisions to "neither confirm nor deny" the existence of requested records in cases where disclosure merely of the records' existence reasonably could be expected to cause damage to the national security.
FOIA amendments adopted in 1986 authorize the FBI to do this for its classified records pertaining to foreign intelligence, counterintelligence, or international terrorism investigations.
This has generally been interpreted to exempt from disclosure only those minor and routine matters in which the public could not reasonably be expected to have an interest. It has also been interpreted to exempt law enforcement manuals from disclosure where such manuals are predominantly of internal interest to agency personnel and their disclosures significantly risks circumvention of agency regulations or statutes.
Exemption 3 applies to matters that are "specifically exempted from disclosure by statute (other than Section 552b of this title) provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld."
In order to assert this exemption, an agency must cite a federal statute other than the FOIA and show that (1) the statute meets either the (A) or (B) criteria of the exemption, and (2) the records at issue fit within the category of information which the statute authorizes to be withheld.
There is no comprehensive list of statutes meeting the exemption criteria.
In order to bring a record within this exemption, an agency must show that the information is (A) a trade secret or (B) information that is (1) commercial or financial, (2) obtained from a person, and (3) privileged or confidential.
If the information was generated by the government, it cannot fall within this exemption. However, the term "person" is here, as elsewhere in the FOIA, broadly construed to include a wide range of entities, private corporations and the like.
Requested records will be considered "confidential" within the meaning of this exemption if their disclosure is likely to either impair the government's ability to obtain necessary information in the future, or cause substantial harm to the competitive position of the person from whom the information was obtained. A pledge of confidentiality from the agency, or the fact that the information at issue is not customarily available to the public, will not qualify requested materials as "confidential" under this exemption.
Exemption 4 cases sometimes give rise to so-called "reverse FOIA" actions, in which the original submitter of the requested materials will seek to prevent the agency from releasing them to the requester.
This provision was intended to incorporate certain common law discovery privileges into the FOIA exemption scheme, and it is probably the most complex of the FOIA's nine exemptions. Included within its scope are the "executive" privilege (protecting advice, recommendations and opinions which are part of the deliberative, consultative, decision-making processes of government), the attorney "work-product" privilege (protecting documents prepared by an attorney in anticipation of particular proceedings, where disclosure would reveal the attorney's litigation strategy or theory of the case), and the attorney-client privilege (protecting confidential communications between an attorney and his client).
The "executive" privilege, which is the most frequently encountered application of Exemption 5 generally involves the most difficult "line-drawing" problems for the agencies and the courts. Pre-decisional versus post-decisional, fact versus opinion - these distinctions hold clear only to a point. Courts have held that pre-decisional recommendations, which would ordinarily be exempt, lose the protection of the "executive" privilege if an agency, in making a final decision, chooses expressly to adopt them or incorporate them by reference. Conversely, facts that would ordinarily be available to the public have been withheld where they are selected or summarized in a way that reflects the deliberative process, or where their disclosure would impair the agency's ability to obtain information that is essential to the agency's decision-making process.
This exemption requires agencies and Courts to balance personal privacy interests against the public interest in disclosure when the record of information at issue can be identified as applying to a particular individual. Although the Supreme Court has noted that the exemption standard of Ocularly unwarranted" appears to tilt this balance in favor of disclosure, the Court has also made clear that, for purposes of the FOIA, there is "public interest" in the disclosure of "personal" information only when such information will shed light on" the operations or activities of some government agency or official.
Exemption 7 applies to records or information compiled for law enforcement purposes, but "only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, © could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a state, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual."
Congress had substantially revised the original 1966 language of this exemption in 1974, and the current version reflects further amendments enacted in October 1986.
Before demonstrating that disclosure of particular records would result in at least one of the six enumerated harms, the agency must show that the records are "compiled for law enforcement purposes."
Although civil and criminal, judicial and administrative enforcement proceedings may all qualify for protection, the proceedings must involve a specific, suspected violation of law.
In the case of a criminal law enforcement agency, whether records were "compiled for a law enforcement purpose" is generally a function of whether there is a "rational" link between the information connected and one of the agencies law enforcement duties.
However, in the case of the FBI, some courts have concluded that virtually all Bureau records are necessarily "compiled for law enforcement purposes" because of the nature of the FBI's responsibilities. Many courts have also said that such information, when compiled in the course of a criminal investigation, is presumed confidential under Section (7) (D), unless proven otherwise.
It should also be noted that information contained in records originally compiled for law enforcement purposes does not lose Exemption protection when it is summarized or reproduced in a new document that is compiled for some purpose other than law enforcement. Conversely, records originally compiled for purposes other than law enforcement can nevertheless qualify for Exemption 7 protection if they are subsequently assembled for law enforcement purposes.
The 1986 FOIA amendments permit an agency to refuse to confirm or deny the existence of records when disclosure of their existence could reasonably be expected to interfere with a criminal law enforcement proceeding and there is reason to believe that the subject of the proceeding is not aware of its pendency.
Exemption 8 applies to matters that are "contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions."
This seldom-encountered exemption is broadly applied by the courts to withhold a wide variety of reporting materials from many different kinds of ''financial institutions." Although the term financial institution is not defined in the FOIA or its legislative history, case law has ruled that it may include any entity authorized to do business under federal laws concerning banks and related institutions. The scope of the exemption is, therefore, not limited to depository Institutions or entities actually regulated by the agency at issue, nor is it limited to matters affecting the solvency of the particular institution.
This least-asserted, least-litigated exemption of the FOIA provides blanket protection for oil well information, which is in most cases also protected by Exemption 4.
It is important to remember that the exemptions listed above are discretionary rather than mandatory; in effect, this means that an agency can decide to release records to a requester even after it has determined that the records may be withheld pursuant to one or more of the exemptions.
The FOIA also requires an agency to provide a requester with any "reasonably segregable portion" of a record after deletion of the portions which are exempt" from disclosure. This means that any agency may not withhold an entire document on the grounds that some portions of the document are exempt.
Section 1. Short Title
Section 2. Findings and Purposes
The purposes of the bill include improving public access to government information and records, and reducing the delays in agencies' responses to request for records under the Freedom of Information Act.
Section 3. Application of Requirements to Electronic
Section 4. Information Made Available in Electronic
Format and Indexation of Records
This section of the bill would require that materials, such as agency options and policy statements, which an agency must "make available for public inspection and copying," pursuant to Section 552 (a) (2), and which are created on or after November 1, 1996, be made available by computer telecommunications, as well as in hard copy, within 1 year after the date of enactment. If an agency does not have the means established to make these materials available on-line, then the information should be made available in some other electronic form, e.g., CD-ROM or disc. The bill would thus treat (a) (2) materials in the same manner as it treats (a) (1) materials, which under the Government Printing Office Electronic Information Access Enhancement Act of 1993 ("GPO Access Act"), Pub. Law 103-40, are required, via the Federal Register, to be made available on-line.
This section would also increase the information made available under Section 552 (a) (2). Specifically, agencies would be required to make available for public inspection and copying, in the same manner as other materials required to be made available under Section 552 (a) (2), copies of records released in response to FOIA requests that the agency determines have been or will likely be the subject of additional requests. In addition, they would be required to make available a general index of these prior-released records. By December 31, 1999, this index should be made available by computer telecommunications. Since not all individuals have access to computer networks or are near agency public reading rooms, however, requesters would still be able to access previously-released FOIA records through the normal FOIA process.
As a practical matter, this would mean that copies of prior-released records on a popular topic, such as the assassinations of public figures, would subsequently be treated as (a) (2) materials, which are made available for public inspection and copying. This would help to reduce the number of multiple FOIA requests for the same records requiring separate agency responses. Likewise, the general index would assist requesters in determining which records have been the subject of prior FOIA requests. Since requests for prior-released records are more readily identified by the agency without the need for new searches, this index would assist agencies in complying with the FOIA time limits.
This section would make clear that to prevent a clearly unwarranted invasion of personal privacy, an agency may delete identifying details when it makes available or publishes the index and copies of prior-released records.
Finally, this section would require, consistent with the "Computer Redaction" requirement in Section 9 of the bill, an agency to indicate the extent of any deletion from the prior-released records and, where technically feasible, to indicate the deletion at the place on the record where the deletion was made.
Such identification need not be included when doing so would harm an interest protected by the exemption in subsection (b) under which the deletion was made.
Section 5. Honoring Form or Format Requests
This section would also require agencies to make reasonable efforts to search for records that are maintained in electronic form or format, unless such search efforts would significantly interfere with the operation of the agency's automated information systems.
The bill defines "search" as a "review, manually or by automated means," of "agency records for the purpose of locating those records responsive to a request." Under the FOIA, an agency is not required to create documents that do not exist. Computer records located in a database rather than in a file cabinet may require the application of codes or some form of programming to retrieve the information. Under the definition of "search" in the bill, the search of computerized records would not amount to the creation of records. Otherwise, it would be virtually impossible to get records that are maintained completely in an electronic form, like computer database information, because some manipulation of the information likely would be necessary to search the records.
Section 6. Standard for Judicial Review
Section 7. Ensuring Timely Response to Requests
Multitrack Processing--An agency commitment to process requests on a first-come, first-served basis has been held to satisfy the requirement that an agency exercise due diligence in dealing with backlogs of FOIA requests. Processing requests solely on a FIFO basis, however, may result in lengthy delays for simple requests, due to the prior receipt and processing of complex requests, and in increased agency backlogs. The bill would permit agencies to promulgate regulations implementing multitrack processing systems, and make clear that agencies should exercise due diligence within each track. Agencies would also be permitted to provide requesters with the opportunity to limit the scope of their requests in order to qualify for processing under a faster track.
Unusual Circumstances--The FOIA currently permits an agency in "unusual circumstances" to extend for a maximum of 10 working days the statutory time limit for responding to a FOIA request, upon written notice to the requester setting forth the reason for such extension. The FOIA enumerates various reasons for such an extension, including the need to search for and collect requested records from multiple offices, the volume of records requested, and the need for consultation among components of an agency.
For unusually burdensome FOIA requests, an extra ten days still provides insufficient time for an agency to respond. The bill would provide a mechanism to deal with such requests, which an agency would not be able to process even within an extra ten days. For such requests, the bill would require an agency to inform the requester that the request cannot be processed within statutory time limits and provide an opportunity for the requester to limit the scope of the request so that it may be processed within statutory time limits, or arrange with the agency an agreed upon time frame for processing the request. In the event that the requester refuses to reasonably limit the request's scope or agree upon a time frame and then seeks judicial review, that refusal shall be considered as a factor in determining whether "exceptional circumstances" exist under subparagraph (6) (C).
Requesters should not be able to make multiple requests merely to avoid the procedures otherwise applicable in unusual circumstances. To avoid the potential problem of multiple requests for purely circumvention purposes, the bill would permit agencies to promulgate regulations to aggregate requests made by the same requester, or group of requesters acting in concert, if the agency reasonably believes that such requests actually constitute a single request, which would otherwise satisfy the unusual circumstances specified in subparagraph (6) (B) (iii) of the bill. The aggregated requests must involve clearly related matters. Agencies are directed not to aggregate multiple requests involving unrelated matters.
Exceptional Circumstances--The FOIA provides that in "exceptional circumstances," a court may extend the statutory time limits for an agency to respond to a FOIA request, but does not specify what those circumstances are. The bill would clarify that routine, predictable agency backlogs for FOIA requests do not constitute exceptional circumstances for purposes of the Act, unless the agency demonstrates reasonable progress in reducing its backlog of pending requests. This is consistent with the holding in Open America v. Watergate Special Prosecution Force, 547 F.2d 605 (D.C. Cir. 1976), where the court held that an unforeseen 3,000 percent increase in FOIA requests in one year, which created a massive backlog in an agency with insufficient resources to process those requests in a timely manner, can constitute "exceptional circumstances." Routine backlogs of requests for records under the FOIA should not give agencies an automatic excuse to ignore the time limits, since this provides a disincentive for agencies to clear up those backlogs. The bill also makes clear that those agencies with backlogs must make efforts to reduce that backlog before exceptional circumstances will be found to exist.
Section 8. Time Period for Agency Consideration
Expedited Access--The bill would require agencies to promulgate regulations need" for a speedy response. The agency would be required to make a determination whether or not to grant the request for expedited access within ten days and then notify the requester of the decision. The requester would bear the burden of showing that expedition is appropriate by certifying in a statement that the demonstration of compelling need is true and correct to the best of the requester's knowledge and belief. The bill would permit only limited judicial review based on the same record before the agency of the determination whether to grant expedited access. Moreover, federal courts will not have jurisdiction to review an agency's denial of an expedited access request if the agency has already provided a complete response to the request for records.
A "compelling need" warranting expedited access would be demonstrated by showing that failure to obtain the records within an expedited time frame would: (I) pose an imminent threat to an individual's life or physical safety; or, (II) "with respect to a request made by a person primarily engaged in disseminating information, urgency to inform the public concerning actual or alleged federal government activity." Agencies are also permitted to provide for expedited processing in other cases as they may determine.
Expansion of Agency Response Time--To assist federal agencies in reducing their backlog of FOIA requests, the bill would double the time limit for an agency to respond to FOIA requests from ten days to twenty days. Attorney General Janet Reno has acknowledged the inability of most federal agencies to comply with the ten-day rule "as a serious problem" stemming principally from "too few resources in the face of too heavy a workload."
Estimation of Matter Denied--The bill would require agencies when denying a FOIA request to make reasonable efforts to estimate the volume of any denied material and provide that estimate to the requester, unless doing so would harm an interest protected by an exemption pursuant to which the denial is made.
Section 9. Computer Redaction
Section 10. Report to the Congress
The Attorney General and the Director of the Office of Management and Budget are required to develop reporting guidelines for the annual reports by October 1, 1997.
Section 11. Reference Materials and Guides
Section 12. Effective Date
Last Modified: November 8, 2006