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Wednesday, December 31, 2014

NMA Guide to the Freedom of Information Act and State/Municipal Public Records Requests


NMA Guide to the Freedom of Information Act and
State/Municipal Public Records Requests

Issued April 2014

Using the public records request (PRR) process to obtain accurate information about how
governmental agencies operate is one of the most powerful tools in the arsenal of an advocate. NMA
members have used the Freedom of Information Act (FOIA) and PRRs to find out such things as how
a particular posted speed limit was established, what justification was used to locate a red-light
camera at a specific intersection, and the operational details behind a specific traffic enforcement

Constructive reform of government requires a thorough understanding of an issue. Used effectively,
the records request helps provide transparency of policy and related activity that are essential
ingredients to an open society and functioning democracy.

This Guide is designed to help you understand and utilize the process established by law to provide
the public with the ability to review, understand, and if necessary, challenge the inner workings of
federal, state, and local government agencies. It is not intended nor should it be construed as giving
specific legal advice. The Guide consists of the following sections:
A Basic Overview of the Records Request Process
Use of Records Requests
Requesting Federal Records
Requesting State or Local Agency Records
Obtainable Records
FOIA Exempted Documents
PRR Exempted Documents
Cost of Obtaining Public Records
Statutory Response Time
Denied Requests
Practical Tips
Appendix 1 – Public Records Request Examples
Appendix 2 – State Public Record Laws
The Practical Tips section and the examples in Appendix 1 in particular may help you craft a
records request designed to obtain the information in an accurate and efficient manner.
Copyright © 2014 National Motorists AssociationNMA Guide to Public Records Requests Page 2
A Basic Overview of the Records Request Process
The process need not be daunting. You don’t have to be (or hire) an attorney to issue a records
request. The language of the request should be straight-forward in describing the documents desired.
The basic steps of executing a successful records request are:
 Refer to the Appendix 1 for ideas of how to structure your request and for suggested
language. Links to the federal and state public records statutes are provided in Appendix 2
for handy reference.
 Decide what specific information you are seeking and write a clear, concise description.
 Contact the agency that holds the records you seek and determine specifically who to direct
the request to – typically the person responsible for the public records request program within
the agency or someone designated as the custodian of records – along with other PRR
requirements by the agency.
 The PRR can usually be submitted by mail, email, fax, or in person. Always get the name of
the specific individual who received your request along with confirmation of time and date of
receipt. Certified or registered mail is recommended, complete with return receipt.
 If there is no acknowledgment of your request from the agency within five business days after
confirmed receipt, call the agency and ask to speak to the person the responsible for its public
records or Freedom of Information Act program. You should determine at this time whether
there are any issues that are holding up the processing of the request, and if none, when you
can expect a response.
 If the agency requires cost reimbursement for processing your request (see Cost of Obtaining
Public Records), determine whether the cost is necessary before proceeding. In many cases,
you can review the records in person at the agency at little to no cost before having copies
made or may be able to clarify your original request such that extra charges are not incurred.
The Freedom of Information Act (Title 5 of the United States Code § 552) is a statute that pertains
to the public’s right to view federal records. Public records laws carry the same obligation to the
public but apply to records maintained or held by a state agency, board, or other governmental entity.
See Appendix 2 for links to the pertinent laws of each state. Local (non-state) government agencies
must follow the state law but may also include some additional requirements. Before issuing a
records request per FOIA, or to a state or local agency, it is strongly recommended that the
regulations governing records requests to that agency be reviewed and complied with.
Use of Records Requests
There are several reasons one might use the public records laws to obtain government documents and
lend transparency to the machinations of a particular agency:
1. To obtain agency records for historical or academic research;
2. To obtain evidence that can be used to challenge agency rulemaking;
3. To obtain evidence that can be used in civil or criminal discovery;
4. To verify agency performance of statutory responsibilities;NMA Guide to Public Records Requests Page 3
Use of Records Requests (continued)
5. To review records involving policy issues and decisions;
6. To expose governmental wrongdoing.
Requesting Federal Records
Identify the agency that has the records you seek; a FOIA request must be addressed to that specific
agency. If the identity of the agency holding the records is unclear, you can make the FOIA request
to multiple agencies.
The FOIA request must be in clear and concise language. The request should be addressed to the
agency’s FOIA officer or to the head of the agency. The outer envelope holding the written request
should be marked “Freedom of Information Act Request” in the lower left corner.
Each request must contain three basic elements:
1. A statement that the request is being made under the Freedom of Information Act
2. Specific identification of the records being sought
3. Contact information of the requester including name and address. Though not mandatory, the
addition of phone number and email address information might facilitate a quicker response.
Note that it is not a requirement to state the purpose of a records request.
Requesting State or Local Agency Records
Each state has public records laws (see Appendix 2) that allow the public to obtain documents and
other public records from state or local governmental agencies. While many state laws are modeled
after the FOIA and use similar language, not all are interpreted the same by state courts. Always
review the state public records statutes and those of the specific agency before submitting a PRR.
Obtainable Records
In general, every record made or received by a government agency or employee is presumed to be a
public record unless specifically exempted in part or in whole. (See FOIA Exempted Documents,
PRR Exempted Documents) If a records custodian claims an exemption, the burden falls on the
custodian to show how the exemption applies and why the record should be withheld.
While federal and state public records laws do not grant an absolute right to obtain government
documents, they do establish the right to request such documents and to receive a response.
FOIA Exempted Documents
Exemptions fall under nine different categories as detailed per 5 U.S.C. § 552(b)(1) to (9):
1. National defense or foreign policy information classified pursuant an Executive Order;
2. Documents "related solely to the internal personnel rules and practices of an agency;"
3. Documents "specifically exempted from disclosure by statute" other than FOIA, but only if
the other statute's disclosure prohibition is absolute;NMA Guide to Public Records Requests Page 4
FOIA Exempted Documents (continued)
4. Documents which would reveal "[t]rade secrets and commercial or financial information
obtained from a person and privileged or confidential;"
5. Documents which are "inter-agency or intra-agency memorandum or letters" which would be
privileged in civil litigation;
6. Documents which are "personnel and medical and similar files the disclosure of which would
constitute a clearly unwarranted invasion of personal privacy;"
7. Documents which are "records or information compiled for law enforcement purposes," but
only if one or more of six specified types of harm would result: a) interfering with
enforcement proceedings, b) depriving a person of a right to a fair trial or impartial
adjudication, c) constituting an unwarranted invasion of personal privacy, d) revealing the
identity of confidential sources, e) disclosing techniques and procedures for enforcement or
prosecution actions that could result in a circumvention of the law, and f) revealing
information that could endanger the life or physical safety of any individual;
8. Documents which are related to specified reports prepared by, on behalf of, or for the use of
agencies which regulate financial institutions;
9. Documents which would reveal oil well locations and production data.
These exemptions could pertain to all or portions of a document.
PRR Exempted Documents
State public records laws should be reviewed for specific exemptions. Typical among them are:
1. Statutory (includes records that are specifically exempt from disclosure by statute and records
deemed exempt under statute by necessary implication);
2. Personnel rules and practices;
3. Privacy (personnel and medical records or information or other data, the disclosure of which
may constitute an unwarranted invasion of personal privacy);
4. Deliberative process (inter or intra-agency communications relating to policy positions, not
including factual studies or reports related to the development of such positions);
5. Personal (notebooks and other materials prepared by an employee of the state or local agency
that are personal to him/her and are not maintained in the files of the governmental unit);
6. Investigatory (materials compiled out of the public view by law enforcement or other
investigatory officials where disclosure could prejudice the possibility of effective law
enforcement and not in the public interest);
7. Trade secrets (or commercial/financial information provided with promise of confidentiality
and used to help develop governmental policy as long as information was not used as a
condition of receiving a governmental contract or other benefit.
Such exemptions could pertain to all or portions of a document.NMA Guide to Public Records Requests Page 5
Cost of Obtaining Public Records
It is good practice to ask for a cost estimate to execute a records request before instructing the agency
to proceed with gathering and disseminating the desired information.
A. FOIA Requests
Fees may be imposed to cover the cost of duplicating documents, the cost of searching for
documents, and the cost to review whether any part of the requested documents are exempt
from disclosure. Charges for review of documents are not to include resolving issues of law
or policy.
Fees can be minimized by focusing the request as specifically as possible, examining
documents in person before determining which pages are to be copied or by asking for
electronic transmittal, and by avoiding whenever possible a request that requires an agency to
generate documents that don’t exist such as a report compiled from data that it does maintain.
FOIA fees are to be waived or reduced if the information requested is likely to “contribute
significantly to public understanding of the operations or activities of the government” and
will not benefit the commercial interests of the requester. It is incumbent upon the requester
to show that disclosure of the specified information will further the public interest. The fee
waiver request should be a fundamental part of the overall FOIA request.
B. PRR Requests for Non-Federal Records
Generally, state and local agencies are permitted to charge fees for the same activities as
outlined above for FOIA requests. The requester should become familiar with the public
records laws of the state in question and with the public disclosure rules of the particular
agency being queried.
Some jurisdictions have established fee schedules. It is advisable to ask for a copy as a way
to ensure the costs to process a records request are in keeping with those standards. Some
states allow fee waivers. See Examples #2 and #3 in Appendix 1 for sample waiver
language. If the requested information is for educational purposes, state that. Some states
will waive or lower processing fees on that basis.
Statutory Response Time
A federal agency typically has up to 20 working days to respond after receiving a FOIA request, a
period that can be extended by another 10 working days under unusual circumstances. Statutory
response times to records requests made to state agencies vary by state, but generally fall under
“reasonable time” standards.
Denied Requests
It is always best to try to sort things out directly with the records custodian at the agency in question.
Occasionally refusals to provide records can be overcome by pursuing administrative remedies with
the agency. But sometimes the agency refuses to release the information you seek, regardless of your
efforts. In the case of FOIAs, you can take the case to court. Consult the public records laws of a
given state (Appendix 2) for information about how to appeal a non-federal agency’s decision to
withhold documents.NMA Guide to Public Records Requests Page 6
Denied Requests (continued)
It is sometimes advisable to state in a records request that if a portion of the request is denied, then
you wish to obtain all non-privileged information and all disclosable portions of documents that
contain some privileged data. See Examples #2 and #3 in Appendix 1 for sample language of such a
The following is with regard to federal records requests under FOIA. You can contest withheld
information, the type or amount of processing fees that were charged by the agency, a rejection based
on what the agency claims to be an inadequate description of the records on your part, or a claim that
the requested records don’t exist or weren’t located. In fact, you can appeal if you feel the agency
didn’t conduct a thorough search for the specific information you requested. Be sure to review the
individual agency’s FOIA standards to determine how much time after an initial denial you have to
file an appeal.
The denial of a FOIA request or an agency’s failure to respond within the statutory 20-day deadline
can be cause for pursuing an administrative appeal. Your appeal, submitted to the agency and
typically reviewed by senior executives and/or attorneys not directly involved with the original FOIA
process, should detail all the facts pertinent to your original request. If you fail to list an important
fact at the administrative appeal level, your options to raise it if the case continues on to litigation
may be limited.
The FOIA process was set up for ordinary citizens to participate in the transparency of government.
As such, you do not need to be a lawyer or have legal research skills to issue a FOIA or to pursue an
administrative appeal if your records request has been obstructed. As such, citing which of the
agency’s records rules have been violated can be an effective strategy to convince the administrative
review panel to release the requested materials.
Practical Tips
Some helpful hints when initiating a records request:
 Some states may offer online FOIA educational courses, allowing public records requesters
to learn proper techniques and submission styles. For instance, a Google search for “Illinois
FOIA online training” led to this listing and link: Public Training – Illinois Attorney
General (
 If there is time, try making a simple request, an information-gathering phone call, or even a
personal visit to the agency office before invoking records laws. A phone call can be
forgotten or a letter shuffled under a heap of paper, but it is impossible to ignore a person
standing across the desk or counter.
 Do some research before sending a request. Even if you have familiarized yourself with the
applicable federal or state records laws, the specific agencies may have additional guidelines.
Try to figure out who is the correct “custodian of record” and whether there is a specific form
to fill out to make the request.
 Keep requests and all communications regarding those requests polite and professional. The
person receiving your request is likely not a policy maker. He/she will tend to be more
helpful the more you treat him/her with respect.NMA Guide to Public Records Requests Page 7
Practical Tips (continued)
 Very Important: Make requests as narrow and specific as possible without excluding the
information being sought. An agency is not required to produce documents or records that
don’t exist and it is not required to itemize for the requester what information it does possess.
It may be necessary to make two requests, the first to determine what information is available
and the second to home in on the desired content.
 Send requests by certified mail with signature confirmation. It is fine to use emails and
phone calls to check on the status of request, but it is best to have the signature of the
recipient on record.
 Whenever you talk over the phone with agency personnel, write down detailed notes of who
you talked to, when the discussion took place, and what the discussion was about.
 Keep copies of all correspondence related to your records request.
 Do follow-up requests before the response deadline, and then again immediately after the
deadline. If the agency is being unresponsive, be sure to let them know that you have a
signature receipt that verifies when the clock started.
 Confine your request to a reasonable number of documents. An agency may refuse a request
if it feels the scope is too broad and burdensome. In that case, consider issuing a series of
requests, focusing each one on a specific set of information or data.
 If an agency responds to a request with a demand for an excessive processing fee, ask for the
basis of the cost estimate and then determine if your request can be narrowed further to avoid
excess charges. Requesting records to be produced in an electronic format may help defray
copying costs.
 If your request is being obstructed and an administrative appeal bears no results, consider
finding a reporter who is interested in the same information. The press doesn’t like when
government is acting secretively, and media involvement will make it harder for your request
to be ignored.
 If you plan on using the requested records during a court case, first consult the rules of
evidence for your state. Have the custodian of records or head of the agency’s Freedom of
Information Act program mark the appropriate documents provided to you as certified.
 Even if you aren’t absolutely sure that the request has been done properly, or that it isn’t in
perfect compliance with the law, you are encouraged to still go forward with your request.
The worse that can happen is that the request is denied and you can try again. On the other
hand, a good public servant will overlook technical flaws and honor the intent of the freedom
of information laws.
 The fact that many agencies outsource activities to contractors can complicate the records
request process. Federal law does recognize that “agency records” remain public records
even though the physical record keeping has been outsourced, but the contractor’s own
proprietary records are generally not subject to a records request.Appendix 1 – Public Records Request Examples
Appendix 1 – Public Records Request Examples (continued)
Example #1 – PRR by email for speed study/yellow light data on approaches to photo-enforced intersections
To: City of _________
Submitted via Email to: <recordscustodian>
Date and Time: _________
Requester Name/Address: __________________
Requester Phone Number: __________________
Requester Email: __________________
Pursuant to the <State> Open Records law, I request the following:
I request that you provide the latest 85th percentile speed check data for the approaches at each of the
photo-enforced traffic lights in <City>. Also please provide timing information for yellow light change
intervals of those same traffic signals lights over the most recent twelve months.
Requester Signature: <provided electronically>
Example #2 – PRR by letter for information about city’s speed camera program
Date: ______
To: <City> Police Department
Attention: <records custodian>
<street address of police department>
cc: <police chief>
Pursuant to <state-specific statutory citation, see Appendix 2>, I am requesting copies of the following
records in the custody of <City> or contractors keeping them on your behalf:
1. The annual calibration certificates for ALL speed monitoring systems used by <City> during
any portion of 2011, 2012, and 2013.
2. The daily setup/deployment logs for all speed cameras used in <City> on the following dates:
_______, ______, _______, _______
3. The technical specifications of the speed cameras used in <City>.
I request that fees be waived for this request since the release of these records is in the public interest,
as they are highly relevant to matters in the public discourse. The requested items pertain to matters of
public policy which affects thousands of motorists. I am not seeking the records for any commercial or
for-profit interest.
If providing scanned electronic copies of these documents is possible, then I would prefer that they be
provided in that form and sent to my email address noted below.
If any privilege is claimed under the law to deny any portion of this request, then I ask that all nonprivileged
portions of the requested records be provided.
I look forward to your response at the earliest possible time, and within 30 days in any event. Thank
you for your time and attention.
<name>, <address>, <email address>, <phone number>Example #3 – PRR by letter for information about speed study data on a state highway
Date: ______
To: <State> Department of Transportation
Attention: <Agency’s FOIA officer or records custodian>
<street address of DOT>
This is a Freedom of Information Act Request
Under Federal and State FOIA laws, and your agency’s implementing regulation, I respectfully request a copy of
the following information.
A copy of the most recent traffic speed studies for the following geographic vicinity:
One mile in each direction of the intersection of State Highway 52 and Slow Poke Road
In the interests of the environment, I am requesting electronic copies of above wherever possible. I am
exercising my right to request a waiver of duplication charges because the material is ultimately going to be used
for public non-commercial purposes.
I believe that all of the information I have requested is reasonable under the Freedom of Information Act.
However, if you decide to withhold all or part of the information requested, please send me a detailed statement
of the reasons for each denial with references to the specific exemptions of the FOIA you are claiming for each
withheld document or portion of document. I expect you to release all reasonably segregable portions of
otherwise exempt material.
I would additionally ask that the requested information, records and data be provided as they become available
and not be withheld as other records in the request are being gathered. Because I am making this request for
research and this information is of timely value, I would appreciate a response to my request within Five (5)
Working Days. Please contact me via phone or e-mail should you have any questions.
<name>, <address>, <email address>, <phone number>
I look forward to your response at the earliest possible time, and within 30 days in any event. Thank you
for your time and attention.
<name>, <address>, <email address>, <phone number>Appendix 2 – State Public Record Laws
Ala. Code 36-12-40 et seq.
Alaska Stat. 40.25.110
Ariz. Rev. Stat. Ann. 39-121 to -124
Ark. Code Ann. 25-19-101
Cal. Gov. Code 6250 to 6270
C.R.S. 24-72-201 et seq.
Conn. Gen. Stat. § 1-200 et seq.
29 Del. C. § 10001 et seq.
District of Columbia
DC Official Code §§ 2-531
Fla. Stat. Ann. 119.01 to .165
Ga. Code Ann. 50-18-70 to 76
Haw. Rev. Stat. §92F-1 et seq.
Id. Code 9-338 to 350
5 ILCS 140/1
Ind. Code Ann. 5-14-3-1 to 10
Iowa Code Ann. 22.1 to .14
Kan. Stat. Ann. 45.215 to 225
Ky. Rev. Stat. Ann. 61.870 to .884
La. Rev. Stat. Ann. 44:31
Me. Rev. Stat. Ann. 1-13 § 408
Md. Code Ann., State & Govt. 10-611 to 628
Mass. Gen. Laws Ann. Ch. 4.7; Ch. 66.10
MCL 15.231
Minn. Stat. Ann. 13.03
Miss. Code Ann. 25-61-1 et seq.
Mo. Ann. Stat. 109.180 to .190
Mont. Code Ann. 2-6-101 to 111
NEB. REV. STAT. 84-712
Nev. Rev. Stat. Ann. 239.005 to .040
New Hampshire
NH Rev. Stat. 91-A:1
New Jersey
N.J.S.A. 47:1A-1 et seq.
New Mexico
14-2-1 NMSA 1978 et seq.
New York
NY Pub. Off. Law Sec. 84
North Carolina
N.C. Gen. Stat. 132-1 to 10
North Dakota
N.D. Cent. Code 44-04-18 to -18.8
Ohio Rev. Code Ann. 149.43
Okla. Stat. Ann. Tit. 51.24A.1 to .18
Or. Rev. Stat. Ann. 192.410 to .505
Rhode Island
R.I. Gen. Laws 38-2-1 to -14
South Carolina
S.C. Code Ann. 30-4-10
South Dakota
S.D. Codified Laws Ann. 1-27-1 to -19
Tenn. Code Ann. 10-7-503 et seq.
Tx. Code Ann. Secs. 552.001 to 552.353
Utah Code Ann. 63G-2-101 to -207
1 V.S.A. Sec. 315-320
Va. Code Sec. 2.2-3704
Wash. Rev. Code Ann. 42.56.001 to .904
West Virginia
W.Va. Code Sec. 29B-1-1
Wis. Stat. Ann. 19.31 to .39
Wyo. Stat. Ann. 16-4-201 to -205
Pa. Cons. Stat. Ann. Tit. 65, 66 . . 1 to .4