FOIA & FOIL

Templates: FOIA (doc / html)  NY FOIL (doc / html NY Dep't of State FOIL template)

Consider Your Purpose, Strategy & Other Consideration 

Is the purpose of your request simply to get the records you request or is it part of a larger advocacy goal?  Are you willing to litigate down the line? Do you want to litigate ASAP?  Do you have limited time or can this be a long term project?

Set Expectations

FOIA & FOIL are legitimately powerful tools for seeking government accountability, but they also have significant limitations.  Requests are almost never filled on time, there will always be delays and some offices will never even answer. Even when they do, exemptions for classified information, law enforcement records, privacy, and deliberative records are significant obstacles.  And sometimes after lengthy delays you learn that the responsive records are not as useful as you thought they would be.

FOIA/FOIL do not generally apply to federal or state legislative records or judicial records, only agency records.

FOIA/FOIL do not require agencies to create new records and they do not help you if the agency has already destroyed the records you seek.

Do Research

First, make sure the records you seek are not already available. Federal agencies, for example, have FOIA Reading Rooms where they are supposed to post certain types of records proactively, including frequently requested records (see, e.g., ICE, DHS, NSA (see also NSA JFK Assassination), FBI, CIA).  Some agencies also have databases of material previously released (see, e.g, State Department  Virtual Reading Room). Also check nongovernmental organizations that are compiling and/or crowdsourcing government records (see, e.g., DocumentCloud, MuckRock, Government Attic - and for JFK records check out Mary Ferrell Foundation).

Second, it can also be worth searching FOIA or FOIL logs that indicate previous requests by other requesters (see, e.g, this FOIA log from the NYPD or this one from the State Department).  If a similar request has previously been made you may be able to piggyback, by submitting a FOIA for the earlier request and any records produced in response.

Third, what do you know about the records you are seeking?  Were they referenced in an article, have they been described somewhere, do you know what part of the agency maintains them?

Finally, you'll need to consider the legal angles and relevant exemptions.  See Research Resources below.

The Form of Your Request Letter

Do you want to send a barebones request, only what you need (see online templates), or a longer, advocacy document (see ACLU example), or something in-between?

Considerations include whether you will be using the request for some other purpose, whether you want to try to preempt a quick rejection by illustrating unique nature of the request or by front loading a legal argument for why the request should be granted.

Note minor point: Some agencies invite you to submit FOIA request via online system - sometimes it results in a poor copy for you of your request. I generally prefer to write a letter and send it via email to agency email address, so I have a clean, cohesive copy of my FOIA request in the event I ever need to attach it as an exhibit or for some other purpose.

Basic Elements

(1) Send it to the right place(s).

This means both doing your research (see above) about which agency or agencies are likely to have the records you seek and also making sure you literally send it to the right place (check agency websites for addresses). If more than one agency may hold the relevant records, make separate requests to all of them.

(2) Make it explicit that it is a FOIA/FOIL request.

How?  "This is a request under the Freedom of Information [Act / Law]."

(3) Specify in what format you want the records.

In the absence of a specific request, agencies will treat it as a request for hardcopy copies of the records, for which you may be charged per page copying fees (see Fee discussion below). Under both FOIA and NY FOIL you can request to receive the records in electronic, pdf format via email or CD, if necessary.

(4) Reasonably describe the records you want.  

It is generally easier and better if you want something specific and identifiable.  If you are requesting something broader ("All records relating to . . . "), you should expect even longer delays, more resistance, and, in some cases, rejections based on the fact that the request is either too vague (request "does not reasonably describe" the requested records) or is so broad as to be an "unduly burdensome" request. 

Try to help them out. Do not assume that the FOIA staff will automatically know what records you're referring to.  Provide as much information as you have - was there an article that described the records (and if so how did it describe them), do you know that a specific office within the agency is responsible for these requests, is there a specific person within the agency that you know is involved with the records?  

RESEARCH RESOURCES


FOIA /FOIL Annotated

5 U.S.C.A. § 552 - Westlaw's USCA has an annotated version that has the same research tools as are available for other statutes, including Case Notes (selected by editors) and Citing References (which creates a custom pool of cases, secondary sources, etc that you can search against).

FOIL is Article 6—Freedom of Information Law  McKinney's has an annotated version that has the same research tools as are available for other statutes.  Regulations are found at 21 NYCRR §§ 1401.1-1401.10.  Dep't of State Comm. on Open Government, FOIL Advisory Opinions & FOIL Case Summaries (2010-2013)

Secondary Sources

DOJ Guide to the FOIA

NY Department of State, Committee on Open Government, Freedom of Information Law (FOIL)

National Security Archive, FOIA Basics


James O'Reilly, Federal Information Disclosure (Westlaw)

Stephen Gidiere, Federal Information Manual (Westlaw)

Practical Guides for Making Requests & Templates



National Freedom of Information Coalition, Sample FOIA Request Letters

MuckRock - allows you to submit & track FOIA requests (for a fee).

Staying Current

FOI-L - List-serv on "State and Local Freedom of Information Issues."  Subscribe for free - over 500 subscribers - everyone from established FOIA experts, lawyers & journalists to the awesome UFO FOIA crowd.

Unredacted - National Security Archive blog.