Government Contracting Database
Freedom of Information Act
Freedom of Information Act
The Freedom of Information Act (5 USC 552) is not a statute that directly relates to the federal procurement laws. However, it is an important and useful tool for government contractors. Under the Freedom of Information Act (FOIA) persons may request copies of records maintained by the agency. Agencies must release these records to the requester upon payment of copying and search fees unless an exemption applies which permits denial of the request.
The statutory exemptions to the Act are as follows:
1. National defense or foreign policy matters classified as such by Executive Order.
2. Matters relating solely to internal personnel rules or practices of an agency.
3. Matter exempted within other statutes.
4. Trade secrets and commercial or financial information obtained from a person and privileged or confidential.
5. Interagency or intra-agency memorandum or letters.
6. Personnel or medical files or similar files which would clearly be an unwarranted invasion of privacy.
7. Law enforcement investigative records.
8. Reports regarding operation of financial institutions.
9. Geological and geophysical information including maps for wells.
The most commonly invoked exemptions are numbers 4 and 5 above. However, a construction contractor can utilize FOIA to obtain agency records on a variety of items that may support a claim, provide a defense to actions by the agency or provide insight into contract interpretation or administration. The Act is to be broadly construed in favor of disclosure.
A request under FOIA should reference the Act and should indicate that reasonable fees for document review and copying will be paid. Some agencies may require the payment to be made in advance of receipt of the documents. If a large number of documents are sought, it is advisable to request permission to review the documents in order to select those which you wish to copy. Most agencies cooperate with such requests and will make the requested documents available at a mutually convenient time. It is important, however, to request a list of any documents withheld by the agency so that you can determine whether a basis exists for appealing the agency withholding. When you review the files, you may want to bring your own copier (or copying service) so that you can copy the documents you select as you review them. Otherwise, the government will expect you to tag the documents you want and the government will copy them for you at a later time. (If the government does the copying it will not only charge you for the copies, but the government will keep a record of everything you copied).
Updated: June 27, 2018