Open Government

Freedom of Information Act


The Freedom of Information Act (FOIA) gives people the right to access government records from any federal agency. The law codified a presumption of openness, describes how people can request information, and gives people a right to sue for the release of records.

Enacted in 1966, the FOIA was a milestone in the development of open government laws and has been mirrored globally by other countries. The FOIA is critical to the functioning of a democratic government because it helps ensure that the public is fully informed about what the government is up to. People have used the FOIA to uncover waste, fraud, and abuse in the federal government.

Access to information and government transparency allows for informed public debate as well as keeps the government accountable. It is particularly important when the government tries to hide is activities behind a wall of secrecy. For example in the post 9/11 era, the government has increasingly sought to expand its power to collect information about people, disregarding public accountability by keeping these surveillance measures a secret. EPIC has aggressively used the FOIA and other open government laws to enable public oversight of these potentially invasive surveillance measures.

When the FOIA was initially enacted, there were problems with delays, lack of judicial oversight, and agencies were not complying with the law. The FOIA has been subsequently amended several times to remove obstacles from requesters and to clarify aspects of the statute.

The FOIA is a disclosure statute. There is a presumption of openness where the FOIA set out a fundamental commitment to make government information available to the public. Federal agencies are obligated to provide records in their possession to all who request information. People do not have to state a basis for the request or how they’ll use that information. Agencies are required to release information that is not protected from disclosure by nine exemptions. These nine exemptions protects interests such as for national security, personal privacy, law enforcement, and privileged communications.

These exemptions should be narrowly applied. The agency has a burden to justify the application of an exemption. These exemptions, however, are discretionary and the agency could, if they wanted to, disclose those records.

People can seek assistance from the Office of Government Information Services (OGIS), the FOIA ombudsman. OGIS mediates disputes between requesters and agencies as well as answers questions related to the FOIA process. OGIS also reviews agency FOIA policies, procedures, and compliance and issues advisory opinions.

FOIA & The Role of the Three Branches of Government


Congress enacted the FOIA and its subsequent amendments. Congress also oversees the law’s application and amends the law as necessary, especially when executive and judicial branches undermine the intent of the FOIA. Congress also holds oversight hearings about agency FOIA compliance and general executive branch transparency. The FOIA also codified a special access provision that prohibits agencies from withholding information from Congress based on a FOIA exemption.

Executive Branch

The executive branch is comprised of federal agencies that are subject to the FOIA. People are entitled to records either created or obtained by an agency and under the agency’s possession or control at the time of the request. The FOIA does not require agencies to create a new record or analyze data when responding to requests. The FOIA also requires agencies to promulgate regulations for implementing the law. These regulations include information about how the agency processes a request and provides details about fee categories and waivers, expedited processing, and other procedures for making a request. The executive branch will often issue guidance on the implementation of the FOIA for agencies. Guidance has come from the President, the Attorney General, the Office of Information Policy at the Department of Justice (DOJ), and even OGIS.


Courts enforce the FOIA and can order agencies to release records improperly withheld from a requester. The courts review the timeliness of an agency’s response, the accuracy of an agency’s analysis and/or determination, and can personally review contested documents to determine whether information was properly redacted.

People cannot use the FOIA to request records from Congress, federal courts, the President, Vice President, or private entities.

DOJ’s annual FOIA reports

The FOIA requires each federal agency to submit an annual FOIA report to the Attorney General that provide an overview of the scope of FOIA activity in the federal government. These annual FOIA reports contain vital statistics such as the number of requests received and processed by an agency, the time taken to respond to requests, the number of backlogged pending requests, the number of times exemptions were applied, and more. The DOJ then compiles a report summarizing key information from these agency annual FOIA reports. The FOIA also requires the Attorney General to submit to Congress the agency’s efforts to encourage government-wide agency compliance with the FOIA.

Advocating Under the FOIA

EPIC frequently uses the FOIA to obtain information about federal activity that impacts critical privacy interests. We use the information obtained under the FOIA to educate the public about secretive government activity, reveal government misconduct, and also change agency practices. Here’s some examples of how EPIC has used FOIA for its advocacy efforts:

  • EPIC obtained documents about the capabilities of airport body scanners that revealed that the Transportation Security Administration explicitly required the machines to record, store, and transfer nude images of passengers. Additionally, the scanner’s privacy filters could be turned off. EPIC also obtained hundreds of traveler complaints about the machine. All of these records helped support a successful campaign against the machines and provided factual evidence for a legal challenge against the agency’s use of these machines. EPIC’s FOIA lawsuit to uncover records led to a successful legal challenge causing the agency to remove the devices from airports and replace them with a machine that produced a generic human outline of a traveler instead of a nude image.
  • EPIC obtained documents that revealed the Department of Homeland Security (DHS) was monitoring Twitter and other social media for dissent and criticism of the agency. This disclosure led to numerous news articles and a Congressional hearing, where EPIC was invited to submit a statement for the record. Public outrage and Congressional inquiries ultimately led to a change in agency practice.
  • EPIC filed a lawsuit against the DHS to obtained records about and to block the development of a system designed to monitor journalists, bloggers, and social media users. After EPIC filed suit, the agency admitted it did not conduct a required Privacy Impact Assessment and disclosed records showing that it bypassed its own privacy officials and ignored privacy and First Amendment threats posed by this media monitoring program. As a result of EPIC’s case, the DHS suspended the program and agreed to complete required Privacy Impact Assessments before collecting personal data in the future.
  • EPIC has submitted amicus briefs in open government cases, including Supreme Court FOIA cases like Food Marketing Institute v. Argus Leader Media, a case addressing the meaning of the work “confidential” in Exemption 4 of the FOIA.
  • EPIC also works with other open government groups in coalition settings to advocate for FOIA reform, working collectively to improve aspects of the FOIA for the requester community. EPIC broadly supports measures that increase government transparency and accountability, including public access to information.

Recent Documents on Freedom of Information Act

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