Any records created, possessed, or controlled by a federal regulatory agency, cabinet and military departments, offices, commissions, government-controlled corporations, the Executive Office of the President, and other organizations of the Executive Branch of the federal government must be disclosed unless the information contained in the records is covered by a specific FOIA exemption. FOIA only extends to existing records; you cannot compel an agency to create or search for information that is not already in its records. Nor can you use FOIA to compel agencies to answer your general questions under FOIA. However, you sometimes can agree to accept information in an abbreviated form rather than the actual documents.
Agencies are required to make the following records available for public inspection and copying without a formal FOIA request via the Federal Register:
- final opinions made in the adjudication of cases;
- unpublished policy statements and agency interpretations;
- staff manuals that affect the public;
- copies of records released in response to previous FOIA requests have been or will likely be the subject of additional requests; and
- a general index of released records determined to have been or likely to be the subject of additional requests.
If you are interested in records that don't fall into one of these categories, you will need to file a FOIA request. See the section on How to Request Records Under FOIA in this guide for more information.
Physical records of any description can be requested under FOIA. Traditional typed documents, as well as maps, diagrams, charts, index cards, printouts and other kinds of paper records can be requested. Moreover, access under FOIA is not restricted to information recorded on paper. Information recorded in electronic media (see further below), audio tapes, film, and any other medium can be requested. The Society of Professional Journalists' A-Z list of covered documents is a great place to start if you aren’t sure if the record you want is covered by FOIA.
The increasing availability of electronic versions of government records is one of the most important developments in public access to government information. “E-records,” as these records are sometimes called, generally are simpler and quicker to obtain, easier to analyze, and otherwise better suited to citizen use. With the invention of online reading rooms and FOIA sections of agency websites, many records take no more effort to access than personal e-mail. Information from e-records can be organized into databases, searched, and plugged into tables and charts, making it possible to perform in-depth analysis in much less time—which opens up new possibilities for public use of government information.
Besides quicker access and (possibly) cheaper reproduction costs, electronic records have several advantages over their paper-based counterparts. E-records can be compiled into databases for easy searching and comparison. They are easier to sort through quickly, possibly making it easier to find patterns and discrepancies. This can make the information-gathering process significantly simpler and more efficient, which is a great help to those who don’t have the time and resources to mount in-depth investigations. For more information on ways to use electronic records, the Poynter Institute has an online bibliography of computer-assisted reporting (CAR) primers and other sources of information.
Electronic records are becoming more and more prevalent as the government continues to expand its use of technology. Because of this, any record you seek could be available in electronic format. Whether you’re talking directly to a records-keeper or filing an official FOIA request, you should consider asking for electronic copies of the records you are requesting. Depending on the agency, you may be able to specify whether you receive e-records by e-mail attachment, CD, or other medium. Some states, for instance, allow the requester to receive records in the format of their choice. An agency must make requested records available in electronic format at the request of a person if the record is readily reproducible by the agency in electronic format (§ 552(a)(3)(B)).
Congress extended the Freedom of Information Act to electronic records by enacting the Government Printing Office Electronic Information Enhancement Act of 1993 ("Electronic Information Act") and the Electronic Freedom of Information Act Amendments of 1996 ("E-FOIA"). The Electronic Information Act requires government to maintain an online directory of Federal electronic information, including the Congressional Record, the official record of Congress’ proceedings and debates, as well as the Federal Register, which contains agencies’ regulations and policy statements. E-FOIA requires that government agencies:
- prepare electronic forms of records and record indexes;
- offer access to those records;
- have a FOIA section of their websites, on which they must post agency regulations, administrative opinions, policy statements, staff manuals, and other records;
- identify common records requests and make those records available online;
- create online reading rooms that include information available in traditional reading rooms; and
- create reference guides for accessing agency information, which must be available online.