How FOIA requests work at the federal level and what agencies can withhold

What to take away

Where a federal FOIA request actually goes

A federal FOIA request does not go to an agency. It goes to the component that holds the record. The FBI runs its own FOIA office. The EPA runs a national office plus ten regional offices. The Census Bureau and the Bureau of Labor Statistics each run their own.

Send a request to the wrong office and it is not a denial. It is a detour. The component should route it and tell you, and that routing can add weeks. Some agencies restart the twenty-day clock when the request lands in the right place.

The Freedom of Information Act covers executive branch agencies, independent regulatory commissions such as the FTC, SEC, and FCC, and government corporations. It does not cover Congress, the federal courts, or state governments. A request for Supreme Court records falls outside FOIA, though the Court releases some documents by other routes.

The Department of Justice has more than forty components. The FBI is one. The Office of Information Policy is another, but it handles policy and appeals, not initial requests for most components. Filing with the wrong DOJ component can cost a month before anyone reads your letter.

The EPA works the same way. A Superfund site in California means Region 9. National policy records mean headquarters. The agency's FOIA site lists a contact for each region.

Before you draft, open the agency's FOIA library and its annual report. Finding the right custodian is the first step, and it is the one that decides how long everything after it takes.

A request must reasonably describe the records and follow agency regulations. You do not have to cite the statute, but it helps. State your fee category and whether you want expedited processing. "All documents about X" invites delay.

Agencies search the systems you name. Ask for emails and you should name custodians and date ranges. Ask for investigative files and you should name the subjects. The FBI will not search its entire Central Records System for a broad topic without limits.

The sequence most requesters follow:

The FOIA.gov how-to page walks through the filing step by step.

The nine exemptions and how agencies use them

Most exemptions are discretionary. The agency may release even when one applies. Exemption 3 is the exception: when another statute forbids disclosure, the agency has no choice.

Exemption 5 draws the most litigation. The deliberative process privilege requires a record to be both pre-decisional and deliberative. Agencies still invoke it for drafts, staff emails, and legal advice, and courts have narrowed how far it reaches.

Exemption 7 dominates at the FBI. Subpart (A) protects law enforcement techniques and procedures. Subpart (C) protects ongoing investigations. Subpart (D) protects confidential sources. To withhold a whole file under 7(A), the FBI must show release could reasonably be expected to interfere with enforcement proceedings.

Exemption 4 shows up at the SEC and FTC for corporate filings. The agency weighs whether the material is confidential and whether release would cause substantial competitive harm. The 2019 Supreme Court decision in Food Marketing Institute v. Argus Leader Media lowered the bar for withholding under this exemption.

Exemption 6 protects personal data at the Census Bureau and BLS. The EPA uses it for health information and Exemption 4 for industry data. The FCC uses Exemption 4 for proprietary telecom information.

Agencies must release reasonably segregable portions. Redact the exempt lines, release the rest, and say which exemption was used and how much was withheld. The Office of Information Policy publishes guidance on that duty.

When an agency withholds, it must name the exemption and its reason. The burden then sits with the agency to defend the call. The full statutory text, including all nine exemptions, is on FOIA.gov.

Fee categories, waivers, and the public interest standard

Your fee category decides the bill. The three named categories are commercial use, non-commercial scientific or educational institution, and news media. A fourth, "all other," catches everyone else.

Commercial requesters pay search, review, and duplication. Educational and non-commercial scientific requesters pay duplication only, with the first 100 pages free. News media requesters pay duplication only, also with the first 100 pages free. All other requesters get two hours of search and 100 pages free, then pay search and duplication.

Review costs fall only on commercial requesters. Duplication is charged to everyone past the free limits. Agencies may waive fees under $25, or when collecting costs more than the fee.

A public interest waiver requires two findings: disclosure would likely contribute significantly to public understanding of government operations, and the request is not primarily in your commercial interest. You have to explain how the records will be used.

Waivers are not automatic. Agencies deny them when the public benefit is not spelled out. Tie the records to a specific government activity, say who will read the work, and skip the boilerplate. A journalist can attach a letter from an editor. A researcher can describe the project and where it will be published.

The news media definition is broad enough to cover bloggers and freelancers. It still requires that you are not seeking the records for commercial gain.

If fees are the obstacle, ask for a reduction, cap the request at a set number of pages, or ask for a sample. You can also request a cost estimate before the agency processes anything.

Expedited processing, multitrack queues, and the twenty-day clock

The statute gives agencies twenty working days to respond. The clock starts when the right component receives a perfected request, meaning one that reasonably describes records and meets the fee and other requirements. A request for clarification can pause it.

Agencies may take ten more working days in unusual circumstances and must tell you in writing. Searching field offices or consulting another agency counts. If the extension runs longer, the agency may ask you to narrow the request.

Expedited processing is available in four situations: imminent threat to life or physical safety, urgent need by someone primarily engaged in disseminating information, loss of substantial due process rights, or an urgent government interest. You must certify the need is true and correct. The FBI and EPA grant few of these.

Multitrack queues sort requests by complexity. A few pages can clear in days. Thousands of pages can take years. The FBI and EPA both run multitrack systems.

Miss the twenty days and you can file a constructive denial appeal or sue in federal court. Courts often let an agency keep processing if it is making progress. The twenty days is a deadline for a determination, not for release.

If the agency cannot meet the deadline, it must give you an estimated completion date and a tracking number. Check status online or by phone. Silence is a reason to follow up in writing, then appeal. The FOIA.gov FAQ covers timing and what to do when nothing comes back.

Appeals, the Office of Information Policy, and litigation

A denial or a withholding can be appealed. The deadline is set by agency regulation, usually 30 to 90 days. The appeal goes to the agency's designated appeal authority. For many Justice Department components, including the FBI, that is the Office of Information Policy.

The Office of Information Policy can affirm, reverse, or remand a component's decision, and it issues policy guidance across agencies. Its rulings bind the component in the case but do not bind other agencies.

Elsewhere the route differs. EPA appeals go to the Office of General Counsel or its designee. SEC appeals go to the Office of FOIA Services. FTC appeals go to the General Counsel. Each agency publishes its own procedure in its FOIA regulations.

An appeal should say why the withholding is wrong. If the agency cited Exemption 5, argue the record is not deliberative. If it cited Exemption 7, argue the investigation is closed or the public interest outweighs. Attach the original request and the tracking number.

Exhaustion comes first. You must appeal and wait for a decision before suing. Skip the appeal and a court may dismiss the case.

If the appeal fails, a suit must be filed within six years of the denial. The court reviews the withholding de novo, and the agency carries the burden. Litigation is slow and expensive, which is why the Office of Government Information Services exists. OGIS, a mediator inside NARA, can facilitate a dispute but cannot order release.

Before you file an appeal:

For the timing side of that work, see this guide to appeal timing.

Reading annual FOIA reports

Those numbers let you compare agencies and track them over time. The FBI's report shows its receipt and backlog figures. The EPA's breaks requests out by region. A spike in one agency's use of Exemption 5 or Exemption 7 is a story on its own.

The official records compared distinction between a proposal, a decision, and a data release shapes how each of those numbers is counted.

FOIA logs are the second tool. Many agencies publish logs of requests received, which show you who else is asking and about what. A record you want may already be public because someone else asked first.

If you are hunting a missing public record, check the log and the agency's electronic reading room before filing. The FOIA.gov reports page links to each agency's report.

Reporting is not uniform across agencies, so treat year-over-year comparisons inside one agency as more reliable than comparisons between two.

What NARA does differently

The National Archives and Records Administration is not a typical FOIA agency. It holds archival records, meaning records transferred from agencies because they have permanent value. FOIA applies to them, with one twist: NARA cannot withhold a record the originating agency already made public.

NARA does not process requests for records still held by the creating agency. An FBI file that has not been transferred means a request to the FBI. Once it is archival, the request goes to NARA. EPA records work the same way.

NARA can invoke the same nine exemptions, and it must consult the originating agency in some cases. Its FOIA office is separate from its archival processing.

Presidential records run on the Presidential Records Act, not FOIA, though FOIA reaches some of them after processing. Start with NARA's finding aids, because many records are already open.

For government policy reporting, that life cycle matters. A record can begin at the FBI, move to NARA, and change which rules govern it. Knowing where it sits saves a filing.

Common questions

How long does a federal agency have to answer a FOIA request?

Twenty working days from receipt of a perfected request, with a possible ten-day extension for unusual circumstances. Missing the deadline lets you file a constructive denial appeal or sue, though courts may allow more time while an agency keeps processing.

Can I get a fee waiver?

Yes, if disclosure would likely contribute significantly to public understanding of government operations and you are not seeking the records for commercial gain. Explain how you will use them. Denials can be appealed.

What are the nine FOIA exemptions?

They cover nine categories of protected records. These are listed below:

How do I appeal a denial?

File a written appeal with the agency's appeal authority inside the deadline set by its regulations, usually 30 to 90 days. For many Justice Department components that is the Office of Information Policy. You must exhaust the appeal before suing.