The FOIA Request Process
On this page:
- Access to Certain Records Without a FOIA Request
- Where to Make a FOIA Request
- How to Make a FOIA Request
- Time for Response
- Expedited Processing
- Fee Waivers
- Request Determinations
- Administrative Appeals
- Judicial Review
The Freedom of Information Act (FOIA) is found in Title 5 of the United States Code, Section 552. It was enacted in 1966 and provides that any person has the right to request access to federal agency records. The FOIA does not, however, provide a right of access to records held by state or local government agencies or private businesses or individuals.
This guide will familiarize you with the specific procedure for making a FOIA request to EPA. The process is neither complicated nor time-consuming. Following these instructions will help you obtain the information you are seeking in the shortest amount of time.
The formal rules for submitting FOIA requests to EPA are set forth in Title 40 Part 2 of the Code of Federal Regulations. These regulations are available on the web and in law libraries and Federal Depository Libraries.
Access to Certain Records Without a FOIA Request
EPA makes certain types of records available in its records centers and on the Internet through the National Online FOIA Library. You may not need to make a FOIA request to access the following types of information:
- Final opinions and orders made in adjudicating cases;
- Final statements of policy and interpretations which have not been published in the Federal Register;
- Administrative staff manuals and instructions to staff that affect a member of the public; and
- Copies of records that have been the subject of a FOIA request and are of sufficient public interest that the agency believes other persons are likely to request them.
The Agency's Annual FOIA Reports -- which include such information as the number of requests received by the agency, the total amount of fees collected by the agency, information regarding the backlog of pending requests, and other information about the Agency's handling of FOIA requests -- are also available through the web. You may also want to search EPA’s web site to see if the information you are seeking is already posted.
Where to Make a FOIA Request
There is no central office in the government which handles FOIA requests for all federal agencies. A request must be made to the agency that has the records you seek. You can find addresses of the FOIA offices of federal agencies by going to FOIA.gov.
How to Make a FOIA Request
EPA does not require a special form in order to make a FOIA request. Requests must be in writing, either handwritten or typed. They may be submitted by mail, or overnight mail to the National FOIA office, or via FOIAonline. The EPA will consider requests received after 5:00PM as received on the next business day.
Your request should be as specific as possible with regard to names, dates, time frames, places, events, subjects, etc. Describe the record as accurately and definitively as possible. You do not have to give a requested record's name or title, but the more specific you are, the more likely it will be that the record you seek can be located.
A FOIA request can be made for any Agency record. This does not mean, however, that EPA will disclose every record sought. There are nine exemptions that authorize the withholding of information of an appropriately sensitive nature. When EPA withholds information, it will specify which exemption of FOIA permits the withholding. You should be aware that the FOIA does not require agencies to do research for you, to analyze data, to answer questions, or to create records to respond to a request.
When EPA cannot process your request due to the lack of necessary information, you may be contacted and additional information will be requested.
Under certain circumstances, you may be entitled to receive more information under the Privacy Act of 1974 (a separate federal statute) than under the FOIA. Under the FOIA, anyone can request any agency record. Privacy Act requests are more limited and can be made only by U.S. citizens or aliens lawfully admitted for permanent U.S. residence status, who are seeking information about themselves, which is maintained in a system of records by their names or other personal identifiers.
To protect your privacy, when you make a written request for information about yourself, you must provide either a notarized statement or a statement signed under penalty of perjury stating that you are the person you claim to be. You may fulfill this requirement by:
- having your signature on your request letter witnessed by a notary, or
- pursuant to 29 U.S.C. 1746 (2) including the following statement just before the signature on your request letter: "I declare under penalty of perjury that the foregoing is true and correct. Executed on [date]." If you request information about yourself and do not provide one of these statements, your request cannot be processed under the Privacy Act. This requirement helps to ensure that private information about you will not be disclosed to anyone else.
Time for Response
Federal agencies are generally required to respond to a FOIA request within twenty working days, excluding Saturdays, Sundays, and legal holidays. The twenty-day period does not begin until the request is received by the Agency and identify the records you are seeking and have an agreement to pay fees or a fee waiver has been granted.
The Agency may extend the response time for an additional ten working days when there are unusual circumstances.
Unusual circumstances include:
- It needs to collect responsive records from field offices;
- The request involves a "voluminous" amount of records which must be located, compiled, and reviewed; or
- The Agency must consult with another agency which has a substantial interest in the responsive material or with two or more other offices of EPA.
When an extension is needed, EPA will notify you and offer you the opportunity to modify or limit your request. Alternatively, you may agree to a different timetable for the processing of your request.
Under certain conditions, you may be entitled to have your request processed on an expedited basis, i.e., within 10 calendar days of the date on which the request was received. However, in an effort to treat all requesters equitably, EPA will expedite a FOIA request only in cases in which there is a threat to someone's life or physical safety; the requestor is primarily engaged in disseminating information and has established that the request is urgently needed to inform the public concerning some actual or alleged government activity.
There is no fee to file a FOIA request and in many cases, no fees are charged for processing.
The FOIA divides requesters into four fee categories:
- Commercial requesters may be charged fees for searching for records, reviewing the records, and photocopying them;
- Educational or noncommercial scientific institutions are charged for photocopying, after the first 100 pages;
- Representatives of the news media are charged for photocopying after the first 100 pages; and
- All other requesters (requesters who do not fall into any of the other three categories) are charged for photocopying after 100 pages and for time spent searching for records in excess of two hours.
EPA charges $0.15 per page for single-sided black and white photocopying. Actual costs are charged for a format other than paper copy, such as computer tapes, disks and videotapes.
You may include in your request a specific statement limiting the amount that you are willing to pay in fees. If you do not do so, EPA will assume that you are willing to pay fees up to $25.
You may request in writing to have fees waived if the disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations and activities of the government and is not primarily in the commercial interest of the requester. The mere fact that you are a non-profit organization or a member of the media does not in and of itself qualify for a fee waiver. In addition, a requester's inability to pay is not a legal basis for granting you a fee waiver.
EPA regulations require you to make the fee waiver request at the time you submit the request.
Request Determinations Letter
The FOIA provides access to all Agency records (or portions of those records), except those records that are withheld under nine exemptions and three exclusions (reasons for which an agency may withhold records from a requester). The determination letter will advise you of any information that is being withheld pursuant to one or more of the exemptions. When pages are being withheld in their entirety, the Agency will specify the volume of the materials denied and/or, if feasible, the location of excluded material.
You may file an administrative appeal with the National FOIA Office if records responsive to your request are withheld, if you believe that there are records responsive to your request in addition to those records processed by the Agency, if your request has not been granted within the time limits set forth in the FOIA, or if your request for expedited processing or a fee waiver is denied. EPA must receive your appeal within ninety (90) days from the date of the denial letter. The EPA will consider requests received after 5:00PM as received on the next business day. Your appeal must be made in writing and submitted to the National FOIA Office (firstname.lastname@example.org) by email, or mail to:
National FOIA Office
U.S. Environmental Protection Agency
1200 Pennsylvania Avenue, NW (2310A)
Washington, DC 20460
Your appeal should include the tracking number assigned to your request, and copies of your initial request and the response letter from the Agency, and the reasons for your appeal. For example, if you are appealing because you believe there are additional records that have not been located, you should specify why you think such records exist and, if possible, where you believe they might be located. For quickest handling, you must mark their appeal letter and its envelope with “Freedom of Information Act Appeal.”
You may file a lawsuit in federal court if EPA fails to respond to either your initial request or your appeal within the time limits discussed above; or if, after your appeal has been decided, you still believe that EPA has not handled your FOIA request in accordance with the law. You may file your suit in a federal district court in any of the following places:
- Where you reside,
- Where you have your principal place of business (if any),
- In the U.S. district court for the District of Columbia, or
- Where the agency records are maintained.
You have six years to file suit in a district court from the time your right to sue begins.