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Freedom of Information Act (FOIA)

Instructions for EPA Staff for Processing FOIA Requests

When processing a FOIA request, review records with a presumption of openness toward determining what can be disclosed, rather than what can be withheld.  When full disclosure of a record is not possible, consider making a partial disclosure. Whether a release involves boxes of material, or only a few pages, it is important to remember that the increased transparency resulting from even a partial disclosure of records is worthwhile.

  • Records cannot be withheld merely to protect public officials from embarrassment, or "because errors and failures might be revealed, or because of speculative or abstract fears."  Rather, agencies should only withhold records, or portions of records, when they reasonably foresee that disclosure would harm an interest protected by one of the exemptions or when disclosure is prohibited by law”.
  • Documents protected by FOIA Exemptions FOIA Exemptions 2, 5, 7, 8, and 9 are not statutorily exempt from release.  Agency staff must use their judgment to make determinations for each document, guided by the "fundamental commitment to open government" that the Attorney General directed should be "realized in practice."
  • In reviewing a record, the Agency must first ensure that any portion being considered for withholding fits all requirements of the exemption being considered. If the exemption applies, the Agency should then take the second step of determining whether to make a discretionary release of the record or portion of the record.
  • For all records, the age of the document and the sensitivity of its content are universal factors that need to be evaluated in making a decision whether to make a discretionary release. Thus, the Agency should view each request with a presumption of openness, strive to maximize the amount of records released and aim to release portions of records when full release is not possible.
  • The Agency should not withhold records merely because an exemption legally applies. For any document or portion of a document for which a discretionary release is possible, consider making such a release and withhold only if the agency reasonably foresees that disclosure would harm an interest protected by an exemption.

Practical Tips 

  1. Employees should remember that the presumption of disclosure applies to all FOIA decisions. 
     
  2. Employees should approach their review of documents by asking, "What can I release?"
     
  3. Records should not be withheld merely because they fall within an exemption.
     
  4. Employees should review each document with a focus on whether there is foreseeable harm if the record is disclosed.
     
  5. Employees should make determinations of foreseeable harm on a case-by-case basis, considering the age of the document and the sensitivity of its contents.
     
  6. Employees should make discretionary releases of records whenever possible.
     
  7. Employees should strive to make a partial disclosure when full disclosure of a record is not possible.
     
  8. The public’s interest in records should be anticipated so that the Agency can proactively identify, retrieve and post them on its Web sites.
     
  9. Employees should work cooperatively with requesters and respond promptly.
     
  10. Employees should consult with the Agency’s National FOIA Office and the Office of General Counsel/Office of Regional Counsel for assistance.