FOIA Handbook

​The Freedom of Information Act (FOIA) is the federal law that provides access to federal agency records, except for certain types of records protected from disclosure under the Act. The law applies only to agency records in existence at the time of a FOIA request. Click here for text of the FOIA found at 5 U.S.C. § 552.

This handbook is a basic outline of FOIA provisions generally, and as implemented by the U.S. Office of Special Counsel (OSC). More detailed information on requirements and procedures followed by OSC in processing FOIA requests can be found in the agency's regulations. Click here for text of OSC's FOIA regulation found at 5 C.F.R. Part 1820.

​Any U.S. citizen, foreign national, foreign government, state government, partnership, corporation, or association may make a FOIA request. Agencies are not required to process FOIA requests made by fugitives from justice or by an agency acting on behalf of a fugitive.

Requests for records of a federal agency made by a Federal employee acting in his/her official capacity are not treated as FOIA requests. Instead, such requests are processed as requests made under the Privacy Act (5 U.S.C. § 552a).

​Requests must be submitted in writing by U.S. postal mail or other delivery service, e-mail, fax, or through our Public Access Link (PAL) portal found here. The PAL allows you to submit a FOIA request online, as well as receive confirmations and updates on your pending request. We encourage use of the PAL for a more efficient response to requests. (Online request will require creation of an access account which can be completed by clicking here.)

If sent by U.S. postal mail or other delivery service, your letter should clearly be marked "FOIA Request" and be addressed to:

FOIA Officer
U.S. Office of Special Counsel
1730 M St., N.W.
Washington, DC 20036-4505

If sending by e-mail, “include "FOIA Request" in the subject line and send to:  FOIArequest@osc.gov.  A FOIA request may also be submitted through the federal government's National FOIA Portal at www.foia.gov. 

Whether sent by mail, e-mail, or the National FOIA Portal, your FOIA request will not be considered to have been received by OSC until it reaches OSC's FOIA Office.

You should also be aware that making a FOIA request will be considered to be an agreement by you to pay all fees chargeable under the FOIA, up to and including $25.00, unless you ask for and receive a waiver of fees.

​Yes. You can obtain many OSC forms, publications, press releases, reports, and other records directly through our web site, at Forms, Resources, and News Links to frequently requested and other records and information are provided under FOIA Reports and Proactive Disclosures

​There are certain steps you can take to assist OSC in responding more quickly to your request. To help OSC process your request more efficiently:

• Use of OSC's PAL[MDAR1]  allows for quick submission of FOIA request and status information, with plenty of options to help you filter your request needs, potentially narrowing request response time.
• Make sure you are as specific as possible in describing the information you seek. If you are seeking specific records from a case file or otherwise, include, whenever possible, the date, title or name, author, or subject matter of the record you are requesting. Referencing specific case or report numbers is also helpful in reducing response time.
• If you are a person (or are representing a person) who filed a complaint or disclosure, and you are requesting records from OSC's file in the matter, specify what file records you are requesting. For example, indicate clearly whether you want: (a) only a copy of records previously exchanged between you and OSC, (b) everything except records previously exchanged between you and OSC; or (c) all file records, including those previously exchanged between you and OSC. Based on OSC's experience with past FOIA requests, and to save time and expense to the requester, we may assume – unless specified otherwise – that persons who have filed complaints or disclosures with this agency are not asking for records already exchanged between them and OSC in the matter.  In addition, if you are requesting your own case file, proof of identification is required and/or a letter of representation submitted by your attorney.
• Keep in mind that file records other than those previously exchanged between you and OSC are likely to be subject to withholding under the FOIA (see explanation in question 9). Narrowing the scope of your request to previously exchanged records simplifies the request and is likely to speed its processing. Depending upon the number of pages to be copied in response to any request, a copying fee may be charged (see item 10, below, for further information about fees).
• If you are not a person who filed a complaint or disclosure with OSC, most, if not all, documents in a case file will likely be withheld by OSC (see explanation in question 9).
• OSC receives several requests each year seeking records that have never been maintained by the agency. OSC is not a repository for all Federal government documents, and is not authorized to respond to FOIA requests for records not within its possession or control. Even if copies of another agency's records may be in OSC files (e.g., pursuant to an OSC investigation), this agency may not be authorized to release them in response to a FOIA request.
• If your request is very broad (e.g., you are asking for records spanning a period of years), the time needed to answer your request will likely be longer than if you reduce the scope of the request.
• The FOIA does not require an agency to create records to comply with a request. An agency is also not required by law to answer questions posed as FOIA requests. See, e.g., DiViaio v. Kelley, 571 F.2d at 542-43 (10th Cir. 1978). To avoid confusion, we recommend that you describe as clearly as possible the record or information you seek, without putting it into a question format. If information is accessible from existing agency records without undue burden on the agency, and is not exempted from release, it is available under the FOIA.

​OSC uses a multi-track system to manage its caseload of FOIA requests. This means that FOIA requests are generally processed by OSC in the order they were received, based on their complexity.

FOIA requests requiring little or no search, review, or analysis are categorized as “simple" requests. These are processed immediately, in order of receipt.

FOIA requests for records requiring search, review, or analysis are categorized as “complex" requests.

Complex requests are categorized by the level of effort (search, review, and/or analysis) anticipated in processing the request. Requests that involve the entire contents of a case file, or that require extensive search, review, referral, analysis, and such as requests for copies of correspondence previously exchanged between the requester and OSC, or for specifically identified documents, are placed in the “Complex" processing track. Complex requests are processed on a first-in/first-out basis, with the simpler track receiving first priority.

OSC's FOIA Officer acknowledges requests as soon as they are received with an acknowledgement letter indicating the request was received, the processing track it was placed in, and any needed additional information required to process your request. PAL users will be provided confirmation of their request upon its completed submission online.

At present, many requests are processed within the 20-working day timetable established by the FOIA. Typically, complex requests are processed as soon as possible thereafter.

​Yes. A requester may obtain status information by accessing the online PAL portal , or by contacting the FOIA Officer by email at FOIArequest@osc.gov .

​Requests and appeals will be taken out of order and given expedited treatment whenever OSC has established to its satisfaction that:

(a) failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual; or

(b) with respect to a request made by a person primarily engaged in disseminating information, an urgency exists to inform the public about an actual or alleged federal government activity; or

(c) records requested relate to an appeal that is pending before, or that the requester faces an imminent deadline for filing with, the Merit Systems Protection Board or other administrative tribunal or a court of law, seeking personal relief pursuant to a complaint filed by the requester with OSC, or referred to OSC pursuant to title 38 of the U.S. Code.

Requesters must submit documentation showing they have met one of the three (3) requirements for expedited processing. OSC will decide whether to grant a request for expedited processing and notify the requester of its decision within ten (10) calendar days of the FOIA Officer's receipt of the request. If the request for expedited processing is granted, the request for records shall be processed as soon as practicable. If a request for expedited processing is denied, any administrative appeal of that decision will be acted on expeditiously.

​OSC is an investigative and prosecutorial agency. As such, the contents of its case files are usually subject to withholding under FOIA. Most case file records (other than correspondence and other documents previously exchanged between a requester and OSC – see item 5, above, for discussion of those records) are withheld, in whole or in part, on the basis of four of the FOIA's nine exemptions. A description of those exemptions, and the types of OSC case file records typically covered by those exemptions, follows:

• FOIA exemption (b)(2) authorizes agencies to withhold information related solely to the internal personnel rules and practices of an agency. 5 U.S.C. § 552(b)(2).
  
  OSC documents covered by this exemption include two different categories of information: (1) records with information on routine internal personnel matters, correspondence control information, routing slips, administrative data forms, case tracking information and computer or other administrative codes; and (2) records with more substantive internal information, disclosure of which would risk circumvention of a legal rule, regulation or requirement.
• FOIA exemption (b)(5) allows agencies to withhold inter-agency or intra-agency memorandums or letters which would not be available to a party in litigation with the agency. 5 U.S.C. § 552(b)(5)
  
  This exemption applies to documents protected from disclosure by various legal privileges, including the attorney work product and deliberative process privileges. The contents of OSC case files are frequently covered by one or both of these privileges. Many materials in case files are attorney work product. This is because when someone files a complaint with OSC alleging a possible violation of law, or when OSC otherwise obtains information about a possible violation of law, information is compiled by staff for the use of OSC attorneys in anticipation of possible litigation to obtain corrective and/or disciplinary action for any violations. Records made for that purpose continue to be protected regardless of the status of the case or passage of time. OSC is not required to segregate factual data from non-factual data in attorney work product materials.
  
  OSC case files also contain memoranda, notes and other documents prepared by complaint examiners, investigators, and attorneys as part of the agency decision making process about allegations under review. Such records are generally protected from disclosure under the deliberative process privilege of exemption (b)(5).
  
  Records in OSC case files subject to withholding under exemption (b)(5) generally consist of complaint examiner, investigator, and/or attorney notes, analyses, recommendations, interview summaries or transcripts, and investigative reports or summaries.
• One other FOIA exemption can be applied to protect personal information in OSC case files and other records. Exemption (b)(6) allows agencies to withhold information in personnel, medical, and similar files when disclosure would constitute a clearly unwarranted invasion of personal privacy. 5 U.S.C. § 552(b)(6). It applies, for example, to information about home addresses and telephone numbers; Social Security numbers; data about race, age, education, or other personal information.
  
• FOIA exemption (b)(7) allows agencies to withhold information compiled for law enforcement purposes under various circumstances. 5 U.S.C. § 552(b)(7).
  
  This exemption allows agencies to withhold information in law enforcement files when disclosure could reasonably be expected to interfere with pending or prospective enforcement proceedings (such as investigations, or corrective or disciplinary action proceedings before the MSPB). The exemption also allows agencies to withhold information in law enforcement files when disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy. Exemption (b)(7) generally applies to references to, and information about, complainants, witnesses and sources, and subjects named or described in records or information compiled by OSC for law enforcement purposes. Information that may be withheld includes names, addresses, and information provided by or about these individuals.
• If a FOIA requester (other than the filer of a complaint or disclosure received by, or referred to, the OSC) seeks information about the identity of a complainant, subject, or witness in an OSC case file, the OSC will not be able to confirm or deny the existence of such a case without a written waiver from the third party identified in the request. This is because any acknowledgement that responsive records or information exist could lead members of the public to draw adverse inferences from the mere fact that a person is mentioned in the files of a law enforcement agency. This protection is provided under exemption (b)(7), described above.

​The FOIA and OSC regulations permit us to recover some of the direct costs of providing information to FOIA requesters. OSC may charge a fee for document search, review and reproduction based on the category of requester.

Fee categories are as follows: (1) commercial use requests – requests for information from an individual or entity seeking information to further the commercial, trade, or profit interests of the requester; (2) requests from educational and non-commercial scientific institutions and the news media; and (3) all other requesters.

Search fees will be charged to all requesters, except educational institutions, non-commercial scientific institutions and news media requesters. Commercial requesters will also be charged fees for review of requested documents to determine whether all or any portion of a document is exempt from disclosure.

Non-commercial requesters will receive the first 100 pages of duplication (or the cost equivalent) and the first two hours of search (or the cost equivalent) free of charge. After 100 pages, a fee of $.25 per page will be charged for duplication.

For specific fee schedules, see OSC's FOIA regulation at 5 C.F.R. § ​​1820.7.

​If your request for records is denied, and you believe there is a legal reason that they should have been disclosed, you may appeal the decision administratively. The FOIA requires federal agencies to notify requesters of their right to appeal an agency decision denying access to records in response to a FOIA request.

In addition, OSC has a FOIA Public Liaison who will help resolve disputes concerning the release of records or any other FOIA customer service concerns. You may contact our FOIA Public Liaison via email at FOIArequest@osc.gov .

​You may appeal an adverse decision on your FOIA request to the appeal official designated in the decision letter, or to:

ATTN: FOIA Appeal

Office of General Counsel
U.S. Office of Special Counsel
1730 M Street, N.W.
Washington, DC 20036-4505

The appeal must be in writing and be sent by regular mail or by email to FOIAappeal@osc.gov. OSC's FOIA regulation, at 5 C.F.R. ​§ 1820.6, specifies that an appeal must be received by the Office of General Counsel within ninety (90) days of the date of the letter denying the FOIA request.

For the quickest possible handling, the appeal letter and envelope or any fax cover sheet should be clearly marked “FOIA Appeal," and should identify the decision (including the assigned FOIA request number, if known) being appealed.

​If the appeal is denied in whole or in part, OSC's written appeal decision will inform you of your right to judicial review of that determination.

• ​U.S. Department of Justic​​e FOIA web site
• “Your Right to Federal Records, Questions and Answers on the Freedom of Information Act and the Privacy Act” [a guide issued by the U.S. Department of Justice (DOJ), and the U.S. General Services Administration in May 2006]
• “A Citizen’s Guide on Using the Freedom of Information Act (FOIA) and the Privacy Act of 1974 to Request Government Records” [a report by the U.S. House of Representative Committee on Government Reform, September 20, 2005]