Freedom of Information Act (FOIA) and Discovery FAQ

Discovery is the legal tool that enables parties in litigation to obtain relevant information from each other. It is widely acknowledged that whistleblowers need broad access to discovery in order to prove their cases. The major discovery tools are:
– depositions (i.e. questioning witnesses under oath prior to a trial)
– document requests
– interrogatories (the ability to submit to force a company to respond to written questions under oath).

The federal rules governing discovery in civil cases are located at Federal Rules of Civil Procedure Rules 26-34. Discovery rules in Department of Labor proceedings are located at 29 CFR Part 18.

In addition to civil discovery in court cases, the Freedom of Information Act (FOIA) permit requires the government to release information upon request, except when prohibited under specific exemptions. Similar to the FOIA, the Privacy Act permits individuals to obtain documents from the federal government about themselves. The Privacy Act also permits individuals to seek the correction of inaccurate records, prohibits the government from collecting information about an individual’s First Amendment activities, and provides for penalties if the act is violated.

FOIA, also known as 5 U.S.C. 522, was passed in 1966 and amended in 1974. It allows the public better access to government records. With these records, the public can find out what the government knows about them and what types of policies agencies use to govern the public.

FOIA is a valuable tool for whistleblowers as they obtain records that they would not be able to obtain otherwise.

The law is broken up into two parts: The first part calls for all government agencies to publish the following in the Federal Registrar:

(A) Descriptions of an agencies central and field organization and the established places at which, the employees (and in the case of a uniformed service, the members) from whom, and the methods whereby, the public may obtain information, make requests, or obtain decisions.

(B) Statements of the general course and method by which its functions are channeled and determined, including the nature and requirements of all formal and informal procedures available.

(C) Rules of procedure, descriptions of forms available or the places at which forms may be obtained, and instructions as to the scope and contents of all papers, reports, or examinations.

(D) Substantive rules of general applicability adopted as authorized by law, and statements of general policy or interpretations of general applicability formulated and adopted by the agency.

(E) Each amendment, revision, or repeal of the foregoing final orders of administrative cases, federal government agency statements of policy, manuals used by an agency’s staff whose policies within apply to the public, and indexes of materials that can be accessed by the public.

The second part of the law is incredibly substantial in terms of protection for the public. The law allows for the public to view the records of agencies. Anyone can find out how an agency is spending its money, the reasoning behind their policies, and the intended effect of the agencies policies.

Note that the information on this page refers to the Federal FOIA law, not state FOIA laws.

Records are defined as:
A) final decisions in particular administrative cases, policy statements that the agency uses, but hasn’t published in the Federal Register
B) internal manuals that are written for the agency’s staff that affect members of the public, and
C) an index of the kinds of information that must be made public. The law also allows the public to see other types of records that were not enumerated above and the courts have interpreted this broadly.

Agencies are defined as agencies that have executive position of the cabinet, independent regulatory committee (like the Federal Communication Commission and the Nuclear Regulatory Commission), and corporations that are owned by the federal government like the U.S. Postal Service and Amtrak. However, the following are exceptions to FOIA: laws passed by Congress, federal court decisions, and records of agencies that are part of the executive branch whose sole purpose is to advise the President. Other restrictions of the law deal with the types of information that are exempt from the FOIA. These exemptions are:

• National Security Information
• Internal Agency Rules
• Information Exempted by Other Statues
• Business Information
• Inter-and Intra- Agency Memoranda
• Personal Privacy Information
• Law Enforcement Records/Ongoing Investigations
• Records of Financial Institutions
• Oil Well Data

If you would like to request records under the FOIA, you must submit it in writing to the appropriate agency. All agencies have a freedom of information officer who processes the requests. The letter must be as clear as possible stating what information you are requesting and the purpose of the information. Several common types for requests are:

• Commercial Use
• Private Information Use
• Scientific or Educational Use
• Mass Media Use

Try to limit your request to only the information that you want. If you tell the agency that you just want everything ever related to the subject, you might give the agency an excuse to delay its response, or deny it flat out. Some other tips are:

• If you know that your request involves a great volume of records, try to state both what your request includes and what it does not include.
• Be as specific as possible. Cite relevant newspaper clips, articles, congressional reports, etc. If the records have already been released, let the agency know the date, release number, and name of the original requester.
• Let the agency know if you’d like to receive information in a particular order. Materials could be reviewed and released to you in chronological or geographical order – or you may simply not want to wait for all the records to be reviewed before any are released.

Many of the agencies charge costs related to the search for the materials desired. The three types of charges are: charges to search for the requested information, costs related to deciding what information to include in your request, and reproduction related fees. The types of costs you pay depends on why you are requesting the information. Your costs can be reduced, for example, if the information is for public distribution versus commercial use. Each agency has to tell you how much these costs are before your request is processed.

If you feel you should not be obligated to pay the related fees, you can ask for a fee waiver in your request. Agencies may grant fee waivers if the requested information is to be publicly disseminated.

By law, the agency has to respond to your request within ten days. However, agencies can take up to an additional ten days due to backlog or difficulties in finding the information you are requesting. If part or all of your request is denied, then you may file a FOIA appeal. Agencies have 20 days to respond to your appeal. The agency will send you a letter acknowledging your appeal and your case will be assigned a number. If they do not respond in those 20 days, you have a right to take your claim to federal district court. However, if after the first response you still have not received any of your requested documents, the agency must send you a letter stating the reason for the delay.

As stated above, each agency has an office or an officer dedicated to processing FOIA requests. A good place to find which agency you should be requesting is government publications which list offices or many government web sites have pages dedicated to FOIA requests.

If you need additional help or want to contact an attorney, please fill out a confidential intake form. To learn more about how NWC assists whistleblowers, please visit our Find an Attorney page.

The New Whistleblower’s Handbook: A Step-by-Step Guide to Doing What’s Right and Protecting Yourself (Lyons Press, 2017) is the first-ever consumer’s guide to whistleblowing. It contains clear and comprehensive rules that fully explain the how to effectively blow the whistle. It is very important that you review this resource in order to determine what laws may protect you and whether you need to take immediate action to protect your rights.