Media Relations Handbook 
for Agencies, Associations, Nonprofits and Congress

§ 11.6  Freedom of Information Act Requests (FOIAs)

By Brad Fitch Foreword by Mike McCurry Contributing Author: Beth Gaston $40 Ships within 1 business day. The Author Reviews Sample Sections Details

The Freedom of Information Act (5 U.S.C. §552), or FOIA, is supposed to create a porous flow of information from the government to the people. Passed in 1966, the law was given real teeth in the post-Watergate era in 1974, and updated for the Internet in 1996. In concept, it states that the people have a right to access whatever government information they want, so long as it doesn't violate certain standards involving national security, personal privacy, trade secrets, or other logical exemptions. In practice, FOIA opened a new window into government deliberations by providing activists, scholars, reporters, and civil libertarians with extraordinary access to information. Simultaneously, it added an enormous burden on federal agencies to process more than half a million requests each year, and subjected federal officials to numerous lawsuits when they refused to divulge requested information.

Within each agency are "FOIA officers," who process and respond to the FOIA requests from companies, reporters, and citizens. This may or may not be a public relations specialist, depending upon how that particular unit is organized. For a list of FOIA contacts at different federal agencies, see the Department of Justice web site, <www.usdoj.gov/04foia/foiacontacts.htm>.

When a FOIA request is received, the agency has twenty days to respond to the requester. According to the General Accounting Office, more than 80 percent of FOIA requesters receive some kind of response within the twenty- day period, if not the actual information requested. Some fees may apply for copying and extended searches.

While there are a series of appeals that can occur using administrative avenues, the only real enforcement of a FOIA request is to take the government to court. News organizations and public advocate organizations have the resources to use this course, but most citizens have to hope that the government gets back to them with the information requested in a timely manner.

There are nine exemptions to the act that allows agencies to withhold information.

1. National Security: military plans, scientific data, or CIA records;
2. Internal Agency Rules: internal personnel rules and agency practices;
3. Information Governed by Other Statutes: information that other legislation has deemed not public, such as individual income tax data;
4. Business Information: trade secrets, manufacturing processes or formulas;
5. Internal Government Memos: information prepared for a trial or other material regarding officials' recommendations;
6. Private Matters: medical records or other material that would compromise an individual's personal privacy;
7. Law Enforcement Investigations: information that would interfere with law enforcement proceedings, deprive a person of the right to a fair trial, or endanger the safety of an individual;
8. Regulation of Financial Institutions: records related to financial institutions such as banks, the Federal Reserve System, and the Office of the Comptroller of the Currency; and
9. Oil Wells: geological and other information related to the location of oil wells.

There can also be penalties for releasing information that is considered to be "commercial/confidential," that is, information that will harm a business if its competitors have access to it. The government often has access to such data that should not be made public--and the FOIA officer can be your friend to help keep you from releasing this kind of information inappropriately. Pre-decisional information (if a decision is expected) may also be withheld-- but do not think that a document is "protected" by merely stamping "DRAFT" across the top. And, once a document is released or made public to one audience, it automatically becomes public for all audiences.

Over the years, Congress and the courts have clarified federal officials' responsibility under FOIA. But the reality is that the government retains some discretion on whether or how to respond to a request--especially if the request requires an extensive search for the information. Each individual department and division will have its own FOIA procedures, and public information specialists should get to know those procedures and the FOIA officers.

While policies for each agency vary, many agencies will distribute requested documents without a FOIA unless: they contain information that must be withheld due to privacy or commercial concerns; there is a FOIA statute that the agency wishes to apply; or, gathering the documents involves a huge effort. It pays to work with reporters to make the process as easy and productive as possible for both the agency and the media. This often means explaining the process to a reporter as to why FOIA requests must be filed for some information and help them define what they want to ask for.

Be prepared to engage in a balancing act of protecting the interests of the agency with your responsibility to the reporter, and to know the laws and agency policies about information release. Ask yourself: "Has this information already been released in another forum? Is it legitimately covered by FOIA? Are aspects of this document legitimately withheld under FOIA? Even if the information is legally withheld, should (or must) it be withheld? What are the consequences to our relationship with the reporter if we do not respond within a short period of time?"

Also, keep FOIA in mind when you create documents. As a federal employee, documents you write are considered official government documents-- even your email may one day receive public scrutiny. When writing memos or emails, remember that your personal views should be kept in check. One public relations specialist referred to a local reporter as a "nefarious little weasel" in an email that he subsequently received under FOIA. Needless to say, that lapse in judgment affected her future working relationship with the reporter. Your actions may eventually be subject to an administrative or legal review, so make sure they are defensible and ethical.

One aspect of the FOIA process that can be very helpful to the public relations officer is when reporters initiate a FOIA request, you now have a record of what reporters are looking for. Work with your agency's FOIA officer to routinely review the list of incoming FOIAs. Many agencies keep a running list of FOIAs received by subject and source to track timing and responses--that same list is useful to you for other purposes. If a media outlet is focusing on a particular issue (and you haven't already worked with the reporter), call him and offer assistance. Begin a relationship and perhaps the story can grow beyond the document.

If an aggressive investigative reporter is requesting numerous documents, begin to prepare for the story. You can often get a sense of the angle of the story by the documents that have been requested. Work with the FOIA officer to review the documents before they are released and plan your strategy. Do you offer an interview now or later? What story do these documents tell? How do you plan to respond? Are there mitigating actions you can take? And be sure to notify agency officials of the pending FOIA request. You don't want the administrator to be surprised with an ABC News 20/20 expose when their pursuit of the story was a matter of public record within your own agency.

Media Relations Handbook
By Brad Fitch
Foreword by Mike McCurry
Contributing Author: Beth Gaston

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Hardbound: 368 pages 
ISBN 10: 1587330032
ISBN 13: 978-1-58733-003-2
LCCN:  2003113070
OCLC: 54982382
Published 2004
Dimensions: 7.2 x 10.25 x 1.1
Weight: 2.1 pounds
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Last updated: January 13, 2010