Freedom of Information Act (FOIA) Handbook
- What is the Freedom of Information Act?
- Who may file a FOIA request?
- How do I make a FOIA request to OSC?
- Are there records I can obtain without a FOIA request?
- What do I need to know to make an appropriate and effective request?
- How long will it take to process my FOIA request?
- Can I check the status of my FOIA request?
- Under what circumstances can the processing of my FOIA request be expedited?
- What types of information may be withheld from me?
- Will I be assessed fees for information provided under the FOIA?
- What can I do if my FOIA request is denied?
- How do I file an appeal?
- What if my appeal is denied?
- FOIA Implementation Plan pursuant to Executive Order 13,392
- Other Useful FOIA Resources
1. What is the Freedom of Information Act?
The Freedom of Information Act (FOIA) is the Federal law that provides access to
federal agency records, except for certain types of records protected from
disclosure under the Act. The law applies only to agency records in existence at
the time of a FOIA request.
Click here for text of the FOIA , found at title 5 of the U.S. Code, section
552 (5 U.S.C. § 552).
This handbook is a basic outline of FOIA provisions generally, and as
implemented by the U.S. Office of Special Counsel (OSC). More detailed
information on requirements and procedures followed by OSC in processing FOIA
requests can be found in the agency’s regulations.
Click here for text of OSC’s
FOIA regulation, found at title 5 of the Code of Federal Regulations, part 1820
(5 C.F.R. Part 1820).
2. Who may file a FOIA request?
Any U.S. citizen, foreign national, foreign government, state government,
partnership, corporation, or association may make a FOIA request. Agencies are
not required to process FOIA requests made by fugitives from justice or by an
agency acting on behalf of a fugitive.
Requests for records of a Federal agency made by a Federal employee acting in
his/her official capacity are not treated as FOIA requests. Instead, such
requests are processed as requests made under the Privacy Act (5 U.S.C. § 552a).
3. How do I make a FOIA request to OSC?
Requests must be submitted in writing either by regular mail, or by facsimile.
If sent by regular mail, your letter and envelope should clearly be marked "FOIA
Request," and should be addressed to:
U.S. Office of Special Counsel
1730 M St., N.W. (Suite 218)
Washington, DC 20036-4505
If sent by facsimile, the cover sheet should clearly be marked "FOIA Request,"
and should be sent to: (202) 653-5151.
Whether sent by mail or by fax, your FOIA request will not be considered to have
been received by OSC until it reaches the agency’s FOIA Officer.
You should also be aware that making a FOIA request will be considered to be an
agreement by you to pay all fees chargeable under the FOIA, up to and including
$25.00, unless you ask for and receive a waiver of fees. (See question 10.)
4. Are there records I can obtain without a FOIA request?
Yes. You can obtain many OSC forms, publications, press releases, reports, and
other records directly through our web site, at “Forms,”
“E-Library,“ and “Press Releases.”
Links to frequently requested and other records and information are provided
Complaint and disclosure forms
The Role of the U.S. Office of Special Counsel (booklet)
Political Activity and the Federal Employee (booklet)
Political Activity and the Federal Employee (2-page information sheet)
Political Activity and the State and Local Employee (booklet)
Political Activity and the State and Local Employee (2-page information sheet)
Micro-purchase credit card information
OSC contract opportunities
OSC FOIA regulation (5 C.F.R. Part 1820)
5. What do I need to know to make an appropriate and effective FOIA request?
There are certain steps you can take to assist OSC in responding more
quickly to your request. To help OSC process your request more efficiently:
- Make sure you are as specific as possible in describing the information
you seek. If you are seeking specific records from a case file or otherwise,
include, whenever possible, the date, title or name, author, or subject
matter of the record you are requesting. Referencing specific case or report
numbers is also helpful in reducing response time.
- If you are a person (or are representing a person) who filed a complaint or
disclosure, and you are requesting records from OSC’s file in the matter,
specify what file records you are requesting. For example, indicate clearly
whether you want: (a) only a copy of records previously exchanged between
you and OSC, (b) everything except records previously exchanged between you
and OSC; or (c) all file records, including those previously exchanged
between you and OSC. Based on OSC’s experience with past FOIA requests, and
to save time and expense to the requester, we may assume – unless specified
otherwise – that persons who have filed complaints or disclosures with this
agency are not asking for records already exchanged between them and OSC in
Keep in mind that file records other than those previously exchanged between
you and OSC are likely to be subject to withholding under the FOIA (see
explanation in question 9). Narrowing the scope of your request to
previously exchanged records simplifies the request and is likely to speed
its processing. Depending upon the number of pages to be copied in response
to any request, a copying fee may be charged (see item 10, below, for
further information about fees).
- If you are not a person who filed a complaint or disclosure with OSC, most,
if not all, documents in a case file will likely be withheld by OSC (see
explanation in question 9).
- OSC receives several requests each year seeking records that have never been
maintained by the agency. OSC is not a repository for all Federal government
documents, and is not authorized to respond to FOIA requests for records not
within its possession or control. Even if copies of another agency’s records
may be in OSC files (e.g., pursuant to an OSC investigation), this agency
may not be authorized to release them in response to a FOIA request.
- If your request is very broad (e.g., you are asking for records spanning a
period of years), the time needed to answer your request will likely be
longer than if you reduce the scope of the request.
- The FOIA does not require an agency to create records to comply with a
request. An agency is also not required by law to answer questions posed as
FOIA requests. See, e.g., DiViaio v. Kelley, 571 F.2d at 542-43 (10th Cir.
1978). To avoid confusion, we recommend that you describe as clearly as
possible the record or information you seek, without putting it into a
question format. If information is accessible from existing agency records
without undue burden on the agency, and is not exempted from release, it is
available under the FOIA.
6. How long will it take to process my FOIA request?
OSC uses a multi-track system to manage its caseload of FOIA requests. This
means that FOIA requests are generally processed by OSC in the order they were
received, based on their complexity.
FOIA requests requiring little or no search, review, or analysis are categorized
as “simple” requests. These are processed immediately, in order of receipt.
FOIA requests for records requiring search, review, or analysis are categorized
as “complex” requests. OSC's FOIA Officer acknowledges complex requests as soon
as they are received with a letter indicating where the request stands in the
line of pending requests.
Complex requests are further categorized by the level of effort (search, review,
and/or analysis) anticipated in processing the request. Requests that involve
the entire contents of a case file, or that require extensive search, review,
and analysis are placed in the “Complex A” processing track. Those requiring
comparatively less effort (such as requests for copies of correspondence
previously exchanged between the requester and OSC, or for specifically
identified documents) are placed in the “Complex B” processing track. Complex
requests in each track are processed on a first-in/first-out basis, with the
simpler track receiving first priority.
At present, many requests are processed within the 20-working day timetable
established by the FOIA. Typically, complex requests are processed as soon as
7. Can I check the status of my FOIA request?
Yes. A requester may obtain status information by contacting the FOIA Officer by
regular mail or fax (see question 3), or by calling (202) 254-3716.
8. Under what circumstances can the processing of my request be expedited?
Requests and appeals will be taken out of order and given expedited treatment
whenever OSC has established to its satisfaction that:
(a) failure to obtain requested records on an expedited basis could reasonably
be expected to pose an imminent threat to the life or physical safety of an
(b) with respect to a request made by a person primarily engaged in
disseminating information, an urgency exists to inform the public about an
actual or alleged federal government activity; or
(c) records requested relate to an appeal that is pending before, or that the
requester faces an imminent deadline for filing with, the Merit Systems
Protection Board or other administrative tribunal or a court of law, seeking
personal relief pursuant to a complaint filed by the requester with OSC, or
referred to OSC pursuant to title 38 of the U.S. Code.
OSC will decide whether to grant a request for expedited processing and notify
the requester of its decision within 10 calendar days of the FOIA Officer's
receipt of the request. If the request for expedited processing is granted, the
request for records shall be processed as soon as practicable. If a request for
expedited processing is denied, any administrative appeal of that decision will
be acted on expeditiously.
9. What types of information may be withheld from me?
OSC is an investigative and prosecutorial agency. As such, the contents of its
case files are usually subject to withholding under FOIA. Most case file records
(other than correspondence and other documents previously exchanged between a
requester and OSC – see item 5, above, for discussion of those records) are
withheld, in whole or in part, on the basis of four of the FOIA's nine
exemptions. A description of those exemptions, and the types of OSC case file
records typically covered by those exemptions, follows:
- FOIA exemption (b)(2) authorizes agencies to withhold information related solely
to the internal personnel rules and practices of an agency.
5 U.S.C. § 552(b)(2)
OSC documents covered by this exemption include records with information on
routine internal personnel matters, correspondence control information, routing
slips, administrative data forms, case tracking information and computer or
other administrative codes.
- FOIA exemption (b)(5) allows agencies to withhold inter-agency or intra-agency
memorandums or letters which would not be available to a party in litigation
with the agency.
5 U.S.C. § 552(b)(5)
This exemption applies to documents protected from disclosure by various legal
privileges, including the attorney work product and deliberative process
privileges. The contents of OSC case files are frequently covered by one or both
of these privileges. Many materials in case files are attorney work product.
This is because when someone files a complaint with OSC alleging a possible
violation of law, or when OSC otherwise obtains information about a possible
violation of law, information is compiled by staff for the use of OSC attorneys
in anticipation of possible litigation to obtain corrective and/or disciplinary
action for any violations. Records made for that purpose continue to be
protected regardless of the status of the case or passage of time. OSC is not
required to segregate factual data from non-factual data in attorney work
OSC case files also contain memoranda, notes and other documents prepared by
complaint examiners, investigators, and attorneys as part of the agency decision
making process about allegations under review. Such records are generally
protected from disclosure under the deliberative process privilege of exemption
Records in OSC case files subject to withholding under exemption (b)(5)
generally consist of complaint examiner, investigator, and/or attorney notes,
analyses, recommendations, interview summaries or transcripts, and investigative
reports or summaries.
- FOIA exemption (b)(7) allows agencies to withhold information compiled for law
enforcement purposes under various circumstances.
5 U.S.C. § 552(b)(7)
This exemption allows agencies to withhold information in law enforcement files
when disclosure could reasonably be expected to interfere with pending or
prospective enforcement proceedings (such as investigations, or corrective or
disciplinary action proceedings before the MSPB). The exemption also allows
agencies to withhold information in law enforcement files when disclosure could
reasonably be expected to constitute an unwarranted invasion of personal
privacy. Exemption (b)(7) generally applies to references to, and information
about, complainants, witnesses and sources, and subjects named or described in
records or information compiled by OSC for law enforcement purposes. Information
that may be withheld includes names, addresses, and information provided by or
about these individuals.
- If a FOIA requester (other than the filer of a complaint or disclosure received
by, or referred to, the OSC) seeks information about the identity of a
complainant, subject, or witness in an OSC case file, the OSC will not be able
to confirm or deny the existence of such a case without a written waiver from
the third party identified in the request. This is because any acknowledgement
that responsive records or information exist could lead members of the public to
draw adverse inferences from the mere fact that a person is mentioned in the
files of a law enforcement agency. This protection is provided under exemption
(b)(7), described above.
- One other FOIA exemption can be applied to protect personal information in OSC
case files and other records. Exemption (b)(6) allows agencies to withhold
information in personnel, medical, and similar files when disclosure would
constitute a clearly unwarranted invasion of personal privacy.
5 U.S.C. § 552(b)(6). It applies, for example, to information about home
addresses and telephone numbers; Social Security numbers; data about race, age,
education, or other personal information.
10. Will I be assessed fees for information provided under the FOIA?
The FOIA and OSC regulations permit us to recover some of the direct costs of
providing information to FOIA requesters. The OSC may charge a fee for document
search, review and reproduction based on the category of requester.
Fee categories are as follows: (1) commercial use requests – requests for
information from an individual or entity seeking information to further the
commercial, trade, or profit interests of the requester; (2) requests from
educational and non-commercial scientific institutions and the news media; and
(3) all other requesters.
Non-commercial requesters will receive the first 100 pages of duplication (or
the cost equivalent) and the first two hours of search (or the cost equivalent)
free of charge.
For specific fee schedules, see OSC's FOIA regulation at
5 C.F.R. § 1820.7.
11. What can I do if my FOIA request is denied?
If your request for records is denied, and you believe there is a legal
reason that they should have been disclosed, you may appeal the decision
administratively. The FOIA requires federal agencies to notify requesters of
their right to appeal an agency decision denying access to records in response
to a FOIA request.
12. How do I file a FOIA appeal?
You may appeal an adverse decision on your FOIA request to the appeal official
designated in the decision letter, or to:
Legal Counsel and Policy Division
U.S. Office of Special Counsel
1730 M Street, N.W. (Suite 218)
Washington, DC 20036-4505
The appeal must be in writing, and be sent by regular mail or by fax. OSC's FOIA
5 C.F.R. § 1820.6, specifies that an appeal must be received by the Legal
Counsel and Policy Division within 45 days of the date of the letter denying the
For the quickest possible handling, the appeal letter and envelope or any fax
cover sheet should be clearly marked “FOIA Appeal,” and should identify the
decision (including the assigned FOIA request number, if known) being appealed.
13. What happens if my appeal is denied?
If the appeal is denied in whole or in part, OSC’s written appeal decision
will inform you of your right to judicial review of that determination.
14. FOIA Implementation Plan pursuant to Executive Order 13,392
On December 14, 2005, President Bush signed Executive Order No. 13,392,
entitled, “Improving Agency Disclosure of Information.” The executive order
required that all federal agencies evaluate their FOIA program and to produce a
plan with goals and timeframes for streamlining the processing of requests and
increasing public awareness of its FOIA procedures. A link to OSC’s plan is
FOIA Improvement Plan
Backlog Reduction Goals
15. Other Useful FOIA Resources
U.S. Department of Justice FOIA
to Federal Records, Questions and Answers on the Freedom of Information Act and
the Privacy Act” [a guide issued by the U.S. Department of Justice (DOJ),
and the U.S. General Services Administration in May 2006]
“A Citizen’s Guide on Using the Freedom of Information Act (FOIA) and the
Privacy Act of 1974 to Request Government Records” [a report by the U.S.
House of Representative Committee on Government Reform, September 20, 2005]