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By: Christine N. Walz, Cynthia A. Gierhart, and Madelaine J. Harrington
The Freedom of Information Act (FOIA) is a federal statute that mandates public access to certain U.S. government and administrative agency records upon submission of a request to the appropriate federal agency. Under FOIA, any person is afforded access to federal agency records unless such records are exempt or protected from disclosure. Each federal agency promulgates its own administrative regulations that outline administrative procedures for requesting exempt records and implementing provisions of FOIA, which readers are encouraged to consult.
FOIA promotes public access to government documents by establishing “a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.” 1 Under the law, therefore, an agency must disclose agency records responsive to an FOIA request, unless the information requested is protected from disclosure by the statute itself.
Upon receipt of a request, an agency is required to make records promptly available to any person who makes a request that reasonably describes the desired records and is made in accordance with the statutory requirements regarding timing, place, fees, and procedures, which are explained further below. Additional information about the mechanics of making a request is also included later in this article.
In responding to the request, an agency must make a reasonable effort to search for the records and must provide the record in the format requested if it is readily reproducible in that format.
There are nine FOIA exemptions which allow agencies to withhold certain categories of information because the release would be harmful to governmental or private interests. 2 These exemptions are generally narrowly construed in favor of access. 3
To read the full practice note in Lexis Practice Advisor, follow this link.
Christine N. Walz is a litigation and media attorney in Holland & Knight’s New York office. She is a member of both the firm’s Litigation Section and Media Practice Team. Ms. Walz is routinely called on to assist media clients with a wide range of First Amendment issues, including defamation, privacy, newsgathering, reporters’ privilege, and access to public records. She also has extensive experience in federal and state court litigation, defending clients in civil enforcement actions, and other complex litigation. Cynthia A. Gierhart is a litigation attorney in Holland & Knight’s Washington, D.C. office who is experienced in a variety of matters, including media, entertainment, trademark, consumer protection, and regulatory compliance. Ms. Gierhart brings the perspective of a former journalist and book editor to her work, advising newspapers and broadcast stations on state and federal open records laws, defamation, and other First Amendment issues. In addition, Ms. Gierhart has engaged extensively in trademark litigation and participated in domestic trademark prosecution and global trademark clearances. Madelaine J. Harrington is an attorney in Holland & Knight’s New York office and is a member of the firm’s Litigation and Dispute Resolution Practice. While attending Georgetown University Law Center, Ms. Harrington worked as a student attorney at the Institute of Public Representation, where she concentrated on communications and technology matters and supported the Federal Communication Commission’s effort to regulate prison phone services. Ms. Harrington also worked as an extern for the U.S. Securities and Exchange Commission in the Office of the Inspector General. She focused her efforts on internal privacy issues, specifically researching legal regulation of employer-issued smart-devices.
For an overview on the Freedom of Information Act (FOIA) and related federal laws protecting personal information in government records, see
> PROTECTION OF PERSONAL INFORMATION IN GOVERNMENT RECORDS KEY FEDERAL LAWS
> Data Security & Privacy > Industry Compliance > Public Sector > Practice Notes
For information regarding state-specific protections of personally identifiable information in government records, see
> PROTECTION OF PERSONAL INFORMATION IN GOVERNMENT RECORDS STATE LAW SURVEY
For a review of FOIA exemptions, exclusions, waivers, and fees, see
> FREEDOM OF INFORMATION ACT STATUTORY EXEMPTIONS AND FEES
> Financial Services Regulation > Freedom of Information Act (FOIA) > FOIA Regulations, Exemptions, and Application > Practice Notes
1. NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 136 (1975). 2. 5 U.S.C.S. § 552 (b)(1)–(9). 3. U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 151 (1989); FBI v. Abramson, 456 U.S. 615, 630 (1982).