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FOIA Facts: Who Isn't Covered by the FOIA

By Scott A. Hodes, Published on January 19, 2004

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 request.

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.