Over the years, FOIA has played a central role in advancing public health policy by enabling investigations and research on topics as wide-ranging as human radiation experiments conducted during the Cold War,^3–5 federal farm subsidies,^6–8 reports about ill airline passengers,⁹ implementation of the President's Emergency Plan for AIDS Relief,¹⁰ and distracted driving due to cell phone use.¹¹

This column explains the history of FOIA's enactment, explores its operational elements, and discusses other relevant laws that may overlap with FOIA or prove useful when FOIA is inapplicable, including the Privacy Act and state freedom-of-information and open-public-meeting laws. The article concludes with a discussion of the implications of FOIA for public health practice.

In enacting FOIA, Congress strived to balance the encouragement of government disclosure and the need for accountability with a desire also to “protect certain equally important rights of privacy with respect to certain information in Government files, such as medical and personnel records.”¹⁴ This attempt to balance government accountability and transparency with protection of sensitive information has characterized FOIA debates since its enactment. For example, enhanced security concerns following 9/11 prompted then-Attorney General John Ashcroft to issue a memorandum to federal agencies in October 2001 recognizing FOIA's importance in promoting accountability and reducing fraud and government waste, but also emphasizing “other fundamental values held by our society” including “safeguarding our national security,” “protecting sensitive business information,” and promoting “functional and efficient” government.¹⁵ In a January 2009 memorandum to federal agency leaders, President Barack Obama set a different tone for his incoming administration, writing that FOIA “should be administered with a clear presumption: In the face of doubt, openness prevails.”¹⁶ Two months later, Attorney General Eric Holder issued a memorandum expressly rescinding the Ashcroft memorandum and advising that “[a]n agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of an FOIA exemption.”¹⁷

The Holder and Presidential FOIA memorandums were well-received by journalists and open-government advocates who had regarded the Ashcroft memorandum's change in emphasis from previous FOIA policy with skepticism and concern.^18–20 Nonetheless, despite the current administration's pronounced public commitment to FOIA, some reports suggest that it has, similar to previous administrations, faced challenges in actual FOIA execution.^21–27 In addition to the concerns about security, protecting confidential corporate and personal information, and ensuring government efficiency, the large number of FOIA requests—612,000 in fiscal year (FY) 2009, according to the Department of Justice (DOJ),²⁸ some of which can produce thousands of responsive documents that must be reviewed by staff—can pose a challenge to FOIA implementation.

FOIA applies to all “records” in the control or possession of a “federal agency”³³ subject to nine exemptions and certain exclusions. Records within an agency's possession and control include those stored in databases as well as those that have been archived. Records include papers, videos, e-mails, audio recordings, maps, and computer documents.^34,35 However, physical objects, such as old computers or tape recorders, are not considered records.

An “agency” for FOIA purposes “includes any executive department, military department, government corporation, government-controlled corporation, or other establishment in the executive branch of the government (including the Executive Office of the President), or any independent regulatory agency.”^33–35 FOIA's definition of “agency” has been subject to litigation and debate but clearly does not encompass Congress; the federal courts; private individuals and corporations; and local, state, and foreign governments.^34–36

Likewise, FOIA does not apply to nongovernmental or private organizations (e.g., contractors, associations, or other organizations) simply because they may receive federal funds or support.^34,35,37,38 However, FOIA may become applicable to these entities and others indirectly if relevant documents from or about these entities are in the control or possession of a federal agency and are released under FOIA. For instance, organizations have used FOIA along with other records to create a database of federal corporate contractor misconduct and to investigate state spending of federal homeland security grants.^39,40

Any “person” may make an FOIA request for a record to a federal agency, even those who are not citizens or residents of the United States.^34,35 This includes state agencies, organizations, and corporations. On occasion, citizens of other countries have used FOIA to obtain U.S. government records about their governments' activities.⁴¹

To facilitate FOIA implementation, agencies are required to publish procedures and fees for FOIA requests, including contact information for FOIA requests.^34,35,38,42 Agency FOIA websites may be a good starting point in obtaining information about FOIA procedures, including applicable fees. In addition to agency FOIA procedures (available at http://www.justice.gov/oip/other_age.htm), various nonprofit organizations have published useful guides about FOIA.^34,36

Once an agency receives an FOIA request, the request will be logged. As the request is processed, agency FOIA staff may contact the requestor to obtain further information as to the scope and nature of the request. A search⁴³ for responsive records will be conducted. FOIA staff may themselves conduct a search for responsive documents and/or ask others in their agency to do so, including public health and regulatory program staff. Agency staff may be asked as part of a search to review their files and e-mails, and agency archives also may be searched.

Once identified, any responsive records will be reviewed by agency FOIA staff to determine if the record should be exempted from disclosure. Records may be redacted, or staff may determine that an entire record is not subject to disclosure. The agency will then respond to the request, denying the request in entirety or in part, releasing responsive records (with portions redacted if the agency has determined exemptions should apply), or stating that records will be released upon payment of an applicable fee.^{29,30,34,36,38,44} FOIA fees may be charged for both searching/locating responsive documents and for copying/duplicating documents. Fees are detailed in each agency's FOIA policy.^34,36,45

FOIA provides that agencies should respond to FOIA requests within 20 working days, but in practice most requests are not processed in this time frame.^{29,30,34–36,46} An agency's partial or complete denial of a request or its application of a particular exemption to all or part of a particular record may be appealed within the agency and litigated in court.