What is the Freedom of Information Act?
The Freedom of Information Act (FOIA), signed by President Lyndon Johnson on July 4, 1966 and codified at 5 U.S.C. § 552, gives any person the right to request records from federal executive branch agencies. You do not need to be a U.S. citizen or explain why you want the records. Agencies must release them unless the information falls within one of nine exemptions or three special law enforcement exclusions.
FOIA covers federal agencies such as the FBI, the EPA and the Department of Defense, but not Congress, the federal courts or state and local governments. Every state has its own public records law for state and local bodies. Requests about yourself may also fall under the Privacy Act of 1974, and the line between public access and personal information connects to the right to privacy.
- Federal law
- 5 U.S.C. § 552 (1966)
- Who can ask
- Any person
- Deadline
- 20 working days, plus 10 in unusual circumstances
- Where to file
- The agency's FOIA office or FOIA.gov
Disclosure is the default. The agency, not you, has to justify keeping a record secret.
How a FOIA request works
- The request: Send a written request to the agency's FOIA office, often online through the agency or FOIA.gov. Agencies must also post frequently requested records proactively.
- The response: The agency must decide within 20 working days, extendable by 10 in unusual circumstances. Many agencies have backlogs, and requests are often placed in tracks by complexity.
- Fees: Fees depend on the requester. News media and educational requesters pay only duplication costs after the first 100 pages, and fees can be waived when disclosure serves the public interest.
The nine exemptions
Agencies may withhold information that is (1) properly classified for national security, (2) solely about internal personnel rules, (3) protected by another statute, (4) trade secrets or confidential commercial information, (5) internal deliberative or privileged communications, (6) personnel and medical files whose release would be a clearly unwarranted invasion of privacy, (7) certain law enforcement records, (8) bank examination reports and (9) geological data about wells. Since the FOIA Improvement Act of 2016, agencies may withhold only when they reasonably foresee harm to an interest an exemption protects. Any reasonably segregable part of a record must be released.
Appeals and lawsuits
If a request is denied, the requester can file an administrative appeal with the agency, usually within 90 days. After that, or if the agency misses its deadlines, the requester can sue in federal district court. The court reviews the case de novo, may examine records in camera, and the government bears the burden of justifying each withholding, often through a detailed index known as a Vaughn index. A requester who substantially prevails can recover attorney fees. In Food Marketing Institute v. Argus Leader Media (2019), the Supreme Court held that commercial information is "confidential" under Exemption 4 when it is customarily kept private and provided under an assurance of privacy.
Korea's information disclosure system
Korea's Official Information Disclosure Act, passed in 1996 and in force since 1998, gives every citizen the right to request records from public institutions. Agencies must decide within 10 days, extendable by 10, and the act lists eight categories of information that may be withheld, including national security and diplomacy, ongoing trials and investigations, deliberative records, personal information and trade secrets. A Korean case note on Freedom of Information and Diplomatic Secrets in Korea: Supreme Court Decision 2015Du46512 (2019) on Withholding Korea-Japan GSOMIA Negotiation Records examines how the Supreme Court upheld withholding records of the Korea-Japan intelligence-sharing agreement talks. Related Korean papers cover police access to phone records in Cell Tower Dumps Ruled Unconstitutional in Korea: Constitutional Court 2012Hun-Ma538 on Communication Records, Informational Self-Determination and Proportionality, adoptees' right to request birth information in 한국 입양서비스의 문제점과 대안: 입양 법제 이원화, 입양정보공개청구권, 인식 개선, and resident audit requests in Resident Audit Requests in Korean Local Government: Purpose, Use, Problems and Reforms, Requirements Under the Local Autonomy Act and the Link to Resident Lawsuits.
| United States | Korea | |
|---|---|---|
| Main law | FOIA (1966) | Official Information Disclosure Act (1998) |
| Who can ask | Any person | Citizens and some foreign residents |
| Deadline | 20 working days | 10 days |
| Exemptions | Nine | Eight categories |
| Challenging a denial | Agency appeal, then federal court | Objection, administrative appeal or lawsuit |
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Criticism and debate
Supporters see FOIA as a cornerstone of accountability: journalists, researchers and ordinary people have used it to uncover safety problems, spending abuses and government surveillance. Critics point to long backlogs, heavy redactions and broad use of the deliberative process exemption, which some call the "withhold it because you want to" exemption. Agencies, in turn, say they are swamped by complex and repetitive requests, including large commercial ones. Debates continue over how to apply FOIA to text messages and private email accounts used for official business.
If you want to know what the government knows, ask in writing. A written denial must cite an exemption, and that gives you something to challenge.
- Who can file a FOIA request?
- Any person, including foreign nationals, companies and organizations, can file a request with a federal agency without stating a reason.
- How long does a FOIA request take?
- The law gives agencies 20 working days, with a possible 10-day extension, but complex requests at busy agencies often take much longer.
- Does FOIA apply to state governments?
- No. FOIA covers federal executive agencies only. Each state has its own public records law for state and local agencies.
References and official sources
- FOIA.gov. U.S. Department of Justice
- 5 U.S. Code § 552, Public information; agency rules, opinions, orders, records, and proceedings. Cornell Law School Legal Information Institute
- Office of Information Policy. U.S. Department of Justice
- 공공기관의 정보공개에 관한 법률. 국가법령정보센터