Many of the inquiries I get
are from prospective clients seeking to gain access to records from
entities outside of the executive branch of the federal government through
the Freedom of Information Act (FOIA). In these instances, I must tell the
surprised individual that the FOIA doesn’t cover the subject of their
What Agencies Are Covered by FOIA?
The FOIA only covers agencies
of the executive branch of the federal government (as well as agencies
termed “independent” like the FTC). Congress exempted themselves from the
FOIA meaning that records from congressional offices, such as
Congressional Research Service,
can not be accessed via the FOIA. Even though members of Congress
running for Congress have given Howard Dean grief over records that are
sealed from his time as governor of Vermont, their congressional records
except for open committee matters are not open to the public either
through a public records law. The General Accounting Office (GAO),
part of Congress, does respond to FOIA requesters even though not
obligated to do so by law. Records of the President and other high ranking
White House officials are not covered by the FOIA either.
The Judicial branch is also not covered by the FOIA. Thus, the FOIA does not cover agencies such as the Administrative Office for the United States Courts. Thus, correspondence between judges and administrative officials are not subject to any immediate public access.
Records from Congress and the Judiciary do become public. However, many years lag before this happens. These records go to the National Archives and then become public. At this point, only historians are basically interested in the records.
Who Is Not Covered by FOIA?
Entities that receive federal
funding are not subject to the FOIA. Thus, a college receiving
Department of Education grant money doesn’t have to respond to
FOIA requests. Nor do government contractors. Private Corporations and
associations are not covered by the FOIA. Only records that are submitted
to the federal government by these entities are subject to the provisions
of the FOIA.
The FOIA covers only a portion of the records created on a day to day basis. While other statutes or discovery mechanisms may provide access for these records, if they aren’t stored by an Executive branch or independent agency of the U.S. government, the access won’t be from the federal FOIA.