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Freedom of Information Resources

What is the Freedom of Information Act?

This resource about the federal Freedom of Information Act (FOIA) was drafted by NAJA lifetime member Matthew E. Kelley (Ojibwe), an attorney with the media law firm of Levine Sullivan Koch & Schulz, LLP, based in Washington, D.C. He is a former reporter for The Associated Press and USA Today.

The federal Freedom of Information Act can be a powerful tool for journalists to perform their crucial role as watchdogs of the government. It is particularly important for Native journalists given that the federal government has more pervasive influence over the lives of Native people and the operations of tribal governments than for most other groups of citizens. But, as with any other bureaucratic process, using FOIA often can be a confusing and frustrating experience. Knowing the basics of how the law works can make navigating the process easier.

The basic idea behind FOIA is that information collected and kept by the government belongs to the people, and therefore the people should generally have access to that information. FOIA requires federal agencies to provide their records – subject to several important exceptions – to anyone who asks. The law applies broadly, not just to paper documents but also to all “records” kept by an agency, including photos, video and audio recordings, email, databases, and other digitally stored information. Although journalists aren’t the only ones allowed to use FOIA (and most FOIA requests are made by private businesses and individuals, not reporters), the law does provide some important advantages for journalists using the law as a reporting tool, which are discussed below.

At the outset, though, the law’s limitations bear emphasis. First, FOIA only covers documents or other records the agency already has; you can’t use FOIA to force an agency to compile information for you.

Second, government agencies have limited resources, and responding to FOIA requests generally is not at the top of their priority lists.  As a result, many agencies are flooded with requests and have backlogs, so there can be significant delays in receiving requested documents.

Third, when it comes to FOIA, not all agencies are created equally. Some federal FOIA offices are thorough, quick and responsive, while others are not as efficient or helpful.

Fourth, although it may seem obvious, FOIA only applies to agencies of the federal government. It does not apply to state governments (all of which have their own freedom of information laws), tribal governments, or private entities such as corporations or foundations.

And, finally, FOIA allows agencies to withhold documents where specific “exemptions” apply.

How to File a FOIA Request

The federal Freedom of Information Act can’t help you if you don’t know how to use it. Here are some tips for making a FOIA request to a federal agency.

The first step to filing a successful FOIA request is to figure out as precisely as possible what information you want and what federal agency or office is most likely to have that information. Often it is possible to zero in on the precise document you want by talking to sources or spokespeople at the agency to determine what information the agency has and what office has it. Other methods include reviewing the agency’s website, researching federal regulations, and talking to other knowledgeable people (former officials, interest groups, etc.) to develop that kind of information. This step is important because federal agencies – especially those that are swamped with requests or uninterested in releasing certain information – frequently deny requests for the reason that they are not specific enough to let employees know where to look.

Before sending a formal request, it can be worthwhile to simply ask for records. Sometimes agency public affairs staff will provide the records or, if they are publicly available elsewhere, direct you to where you can get copies.

Next, you need to determine where to send your request. Again, some reporting ahead of time can help you determine which office within an agency is the right one to receive your request. Some requests for Bureau of Indian Affairs records, for example, should be sent to one of the agency’s dozen regional offices rather than its Washington headquarters.

Every federal agency should have a link on its website to information about filing a FOIA request. Those links are usually in small type at the bottom of the agency’s home page. For example, the BIA’s FOIA site is, and the Indian Health Service’s page is

Those pages have the names and mailing addresses of the agency’s FOIA officers, and usually include email addresses and fax numbers to which FOIA requests may be sent. The pages often also have links to online forms you can fill out rather than writing your own FOIA request; that page for the Interior Department (including the BIA) is and the similar site for the IHS is

There is no required format for writing a FOIA request; you can use one of the templates provided by various journalism and freedom of information groups (the iFOIA platform from the Reporters Committee for Freedom of the Press is particularly helpful) or draft your own. However, your request should include:

After you file your request, be sure to follow up with periodic phone calls or emails to the agency’s FOIA office to check on the status of your request. Keep a log of those calls or copies of the emails just in case you need to refer to them in an administrative appeal or lawsuit. Generally, the agency will send you, via U.S. mail or email, an acknowledgement that your request has been received and a number assigned to your request that you should use in further communications with the agency.

For an explanation of how to challenge an agency’s denial of your FOIA request, see Part III of this article.

Challenging Denial of a FOIA Request

Federal agencies responding to FOIA requests frequently release only some of the requested records. In other cases, the agency may deny the request completely or fail to respond within the deadlines set by the law. What do you do then?

FOIA Exemptions
Federal agencies don’t have to hand over any and all records sought under FOIA. In addition to allowing general objections for vague or burdensome requests, the law exempts several specific categories of information. The law requires agencies to interpret the exemptions narrowly, although that doesn’t always happen in practice.  Under the law, the agency can generally withhold or redact (i.e., black out) only the specific information covered by the exemption. Plus, the agency is required to state what exemption it claims applies to each withheld record or redacted portion of a record.

The most commonly cited exemptions include:

Different agencies vary widely in how they apply FOIA exemptions, with some being more aggressive than others in withholding material.  When there is a dispute between the requester and the agency regarding whether and to what extent an exemption applies, the requester can file an administrative appeal and, if that is unsuccessful, a lawsuit in federal court.

Challenging the Denial of a FOIA Request
The agency may fail to respond to your FOIA request or deny all or part of it, either by stating that no such records exist, withholding entire records, or redacting parts of the records released to you.  When that happens, your first option is to file an administrative appeal – essentially, a request for higher-ups in the agency to reconsider the decision.

An administrative appeal can be made in a letter to the agency’s FOIA appeals officer (who also should be listed on the agency’s website). The letter should say why you believe the agency made the wrong decision, request a more precise explanation of the agency’s decision (if the original explanation is unclear or missing), and remind the agency that you expect a response within the 20-day time limit for appeals.  While you can file this appeal yourself without an attorney, it is often a good idea to consult with a lawyer before filing an administrative appeal so you can make the best case (and avoid possible missteps).  Requesters can also appeal the denial of news media fee-waiver requests, which, despite clear direction from Congress, many agencies still construe narrowly.

As with the FOIA requests themselves, agencies vary in their responsiveness to administrative appeals.  However, an administrative appeal is not a lost cause: The Interior Department, for example, partially or completely grants the appeal or returns the matter to the agency for reconsideration in more than half of the FOIA appeals it receives. On the other hand, the average processing time for a FOIA appeal to the Interior Department is more than one year.

Only after the administrative appeals process is complete (or if the agency doesn’t respond to the appeal within the deadline) can the requester file a lawsuit in federal court challenging the agency’s FOIA decision.  A FOIA lawsuit must be filed in federal court and can be filed  by the requester pro se, meaning without representation by a lawyer.  Again, it’s usually a good idea to consult with or retain an attorney before filing a FOIA lawsuit; the laws and rules governing such lawsuits are complex, and a misstep could turn a winning case into one that is thrown out.  Fortunately, a requester who challenges a FOIA denial in court and wins can get his or her attorneys’ fees paid by the government agency involved.

Examples of Freedom of Information and open meetings laws

View free press law examples here. View the Free Press Elements for Tribal Media here

Osage Nation Congress, Open Records Act, ONCA 10-05

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Osage Nation Congress, Osage Nation Open Meetings Act, ONCA 07-53

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Cherokee Nation, Freedom of Information and Rights of Privacy Act, LA 25-01

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RCFP article on amendment of law
The Confederated Tribes of the Grand Ronde Community of Oregon, Freedom of Information Ordinance

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Muscogee Nation, Freedom of Information Act, NCA 20-017

Download here
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