5 U.S.C. § 552
FOIA: suing a federal agency for records it will not hand over
A federal claim in United States district courts · Last verified August 26, 2026
The Freedom of Information Act inverts the usual litigation posture. The agency carries the burden — not the requester. Exemptions are construed narrowly, review is de novo, and the government has to justify every page it holds back.
It is also the rare federal claim with no standing requirement worth the name. Any person may request records. You need no injury, no stake, no reason. Journalists, researchers, businesses investigating competitors, and people curious about their own files all use the same statute.
What the claim is
You asked a federal agency for records, and it refused, produced too little, redacted heavily, or never answered at all.
The recurring disputes: an agency withholding under the deliberative-process privilege; a blanket refusal to confirm or deny; an inadequate search; excessive redactions; and delay that never resolves into a decision.
Where the right comes from
Express, and it does two things — creates the duty, then creates the remedy.
Agencies "shall make [records] promptly available to any person" on a request that reasonably describes the records and follows the agency's published rules. And district courts have jurisdiction
to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld.
What a plaintiff has to prove
Not much, which is the point. You made a proper request; the agency withheld records.
Then the burden shifts entirely. Review is de novo, and the agency must justify each withholding — identify the exemption, explain why it applies, and usually produce an index describing what it is holding back and why. A court may examine the records privately to check.
The practical fights are over the adequacy of the search (did the agency look in the right places, using reasonable methods?) and whether an exemption covers what was withheld.
How long you have to file
No express period. Courts apply the general six-year period for civil actions against the United States, running from actual or constructive exhaustion.
There is no clean statutory number here and no point pretending otherwise. Six years is the working answer, and no provision in the statute says so.
What has to happen before you file
Administrative exhaustion — and it comes in two forms.
Actual exhaustion. If the agency responds, you must file an administrative appeal within the agency before suing. Skipping that step is the most common reason a FOIA suit gets dismissed early.
Constructive exhaustion. If the agency misses its statutory deadline — 20 working days, plus a 10-working-day extension in unusual circumstances — you "shall be deemed to have exhausted [your] administrative remedies" and may sue immediately.
But constructive exhaustion is perishable. If the agency responds late yet before you file suit, the ordinary requirement revives and you must appeal administratively after all. The window closes when they answer, not when the deadline passes.
Character: a prudential claim-processing requirement, not jurisdictional.
Who can be sued — and who cannot
Federal agencies. Executive departments, independent regulatory agencies, government corporations.
Not Congress. Not the federal courts. Not the President's immediate personal staff. These are not "agencies," and requests directed at them fail at the threshold rather than on an exemption.
"Any person" may request and sue — individuals, companies, foreign nationals, organisations. The injury is nondisclosure itself, so there is no separate standing analysis beyond having made a proper request and received an inadequate response.
Common defenses — the nine exemptions
The agency must fit the withholding into one of nine categories:
- National security information properly classified.
- Internal personnel rules and practices.
- Records another statute exempts from disclosure.
- Trade secrets and confidential commercial or financial information.
- Privileged inter- or intra-agency memoranda — deliberative process, attorney-client, work product. This is the most litigated and most abused.
- Personnel, medical, and similar files whose disclosure would invade personal privacy.
- Law enforcement records, in six defined subcategories.
- Financial institution examination records.
- Geological and geophysical data concerning wells.
Separate exclusions permit an agency, in narrow circumstances, to treat certain law-enforcement records as not subject to the Act at all.
The other real defense is adequacy of search — that the agency looked reasonably and found nothing more.
What the claim pays
An injunction ordering production. That is the remedy. No damages, however badly the agency behaved.
Attorney's fees have two separate requirements, and this trips people up:
- Eligibility — you must have "substantially prevailed."
- Entitlement — a discretionary, multi-factor determination even after you qualify.
Congress overrode the Supreme Court on the first of those. After a 2001 decision limiting fee awards to plaintiffs who obtained a judicial order, agencies could moot fee claims by producing records the day before a ruling. The OPEN Government Act of 2007 restored the catalyst theory: a complainant substantially prevails through a judicial order or through "a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial."
Two limits: a pro se non-attorney requester cannot recover attorney's fees, and a prevailing agency recovers nothing.
What people get wrong
"Twenty days means I get the records in twenty days." No. Missing that deadline lets you sue; it does not produce documents.
"The agency answered late, so I can still go straight to court." Not if it answered before you filed. Constructive exhaustion evaporates when the response arrives.
"I need a reason to request records." You do not. Any person, any purpose, no explanation.
"They gave me the records after I sued, so my fee claim is dead." Not since 2007 — the catalyst theory covers exactly that.
"I can FOIA Congress or the courts." No. They are not agencies.
"I'll get damages for the delay." There are none.
Where it came from
FOIA was enacted in 1966 on a simple premise: government records belong to the public unless a specific reason justifies withholding them. As passed it was close to toothless, with no meaningful enforcement.
The 1974 amendments — enacted over a presidential veto, in the aftermath of Watergate — supplied the teeth: de novo review, the burden on the agency, in camera inspection, deadlines, and fee-shifting.
Later changes kept pace with the mechanics. The 1996 amendments addressed electronic records. The OPEN Government Act of 2007 overrode the judicial narrowing of the fee provision. The FOIA Improvement Act of 2016 added a foreseeable-harm standard, requiring agencies to show that disclosure would harm a protected interest rather than merely that an exemption technically applies — still being worked out in the courts.
Common questions
How long does an agency have to respond to a FOIA request?
Twenty working days, with a ten-working-day extension in unusual circumstances. Missing that deadline does not produce records — it lets you treat administrative remedies as exhausted and sue.
Do I have to appeal within the agency before suing?
Yes, if the agency responded. If it blew the deadline you may sue immediately — but if it responds late and before you file, the appeal requirement comes back.
Do I need a reason to request records?
No. Any person may request federal records for any purpose, and you never have to explain why.
Who has to prove the records can be withheld?
The agency. Review is de novo and the government bears the burden of justifying every withholding under one of the nine exemptions.
Can I recover my attorney's fees?
Possibly. You must have substantially prevailed — which since 2007 includes causing the agency to change position voluntarily — and the court must then decide, in its discretion, that you are entitled. A pro se non-attorney requester cannot recover attorney's fees.