How to Access Government Records: The DoD FOIA Playbook

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In July 2015, Martin Peck, an Oregon software developer, asked the Defense Department a question that sounds like an afternoon’s work: how many HotPlug devices did it own? A HotPlug is a portable power station that lets an investigator carry a suspect’s computer away without switching it off. The Pentagon wrote back that answering would take 15 million labor hours and cost $660 million.

That was not secrecy. The department’s contract database, Electronic Documents Access, holds about 30 million contracts and cannot be searched by text, because many are scans of paper. The estimate assumed someone reading every contract for twenty minutes.

Whether a requester gets a Defense Department record turns far more on where the request went, how it described the record and how long the requester can wait than on the nine exemptions everyone argues about. The department’s Freedom of Information Act (FOIA) backlog rose 42 percent during fiscal 2025, to more than 30,000 cases. Nearly everything a requester controls happens before that queue.

The record has to exist, and the Pentagon has to hold it

FOIA gives a requester a right to records, not to answers. An agency must make the records promptly available to any person who reasonably describes them and follows its published rules on time, place, fees and procedure. Justice Department training for FOIA staff puts the other half plainly: a question is not a FOIA request, and an agency is not required to create records.

A request asking why the Army closed a facility gets nothing. A request for the closure study by office and year gets a search.

A veteran or next of kin after a service file has an easier route than FOIA: mail or fax Standard Form 180 to the National Personnel Records Center in St. Louis.

Some records are simply gone. A fire at that center on July 12, 1973, destroyed roughly 16 to 18 million Official Military Personnel Files. It took about 80 percent of Army files for people discharged between November 1912 and January 1960, and about 75 percent of Air Force files for discharges between September 1947 and January 1964 with surnames after Hubbard, James E. No duplicates were kept and no index existed beforehand. No request undoes a fire.

Look on the shelf before you file

Four kinds of material have to be online already, with nobody asking: final opinions and orders in adjudications, policy statements not printed in the Federal Register, and staff manuals that affect the public. A fourth covers released records likely to be sought again, or requested three or more times.

The three-times rule matters most. If a document has interested three people, it belongs in a reading room. Check there before joining the queue.

There is no mailroom at the Pentagon

“The Defense Department” is not an address. Its FOIA system is decentralized by regulation: each component runs at least one FOIA Requester Service Center for its own records, and a requester should write directly to the component that maintains the records being sought.

A request sent to the wrong component is not filed late. It is filed nowhere useful.

Write it so a clerk can run it

Courts use a working test: a description is sufficient if it lets a professional employee familiar with the subject area locate the record with a reasonable amount of effort. Picture that employee at a terminal. Give dates, the office, the subject, the format, and any document number you have.

A component that finds a request insufficiently described has to tell the requester what more it needs. The same rule lets a requester name a preferred format and requires contact information. Call the component’s FOIA Public Liaison before filing and ask how to phrase it.

Vagueness is fatal, not merely slow. Judge Huvelle dismissed Freedom Watch, Inc. v. CIA after finding the requests “virtually incomprehensible” and unreasonably burdensome.

What it costs, and when it costs nothing

The requester’s fee category, not the subject, decides the bill.

Most individuals land in the bottom row, charged for search and duplication, with the first two hours of search and the first 100 pages free. The Defense Department’s schedule sets photocopies at $.15 per page, one copy per request.

News media is a function, not a credential. The category covers anyone who gathers information of potential interest to a segment of the public, uses editorial skill to turn it into a distinct work, and distributes that work to an audience. A press pass is not the test.

A waiver has two parts, and a request needs both. Fees go away where disclosure is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the requester’s commercial interest. Say what the public learns, and who is not profiting.

Fees are also where requests die quietly. Peck was never denied. He was quoted $660 million.

Twenty working days, and the queue behind them

Within 20 working days the agency must decide whether to comply and notify the requester of that determination and its reasons, the right to help from its FOIA Public Liaison, and, if adverse, the right to appeal. A determination is not the documents. It is the answer about whether any will come.

The clock stretches on narrow grounds. “Unusual circumstances” are limited by statute to three: searching field facilities separate from the processing office, examining a voluminous amount of separate and distinct records demanded in one request, and consultation with another agency or between interested components. A large Defense request can meet all three on arrival.

A request counts as backlogged the moment that 20-day deadline passes. The department’s chief FOIA officer blamed staff losses first for the fiscal 2025 rise, reporting 37 percent loss or turnover among FOIA officers across its components, ahead of volume, complexity and litigation. Justin Doubleday reported the figures for Federal News Network in March 2026.

Courts allow for overload, within limits. In Open America v. Watergate Special Prosecution Force, the D.C. Circuit read “exceptional circumstances” to require a deluge of requests vastly in excess of what Congress anticipated, resources inadequate to meet the deadline, and an agency exercising due diligence. All three, not just the first.

Getting ahead of thirty thousand other people

Expedited processing needs a compelling need: an imminent threat to someone’s life or physical safety, or, for a person primarily engaged in disseminating information, urgency to inform the public about actual or alleged federal government activity. The requester must certify it true and correct.

The Defense Department adds two grounds the statute does not contain: imminent loss of substantial due process rights, and humanitarian need. Requests granted on those sit behind the compelling-need ones. If a hearing turns on the record you want, say so in those words.

An exemption is permission to withhold, not an order

Since 2016 an agency may withhold only if it reasonably foresees that disclosure would harm an interest protected by an exemption, or disclosure is prohibited by law. Attorney General guidelines issued in March 2022 add that material technically within an exemption should not be withheld absent an identified foreseeable harm or legal bar, and that in doubt, openness should prevail.

An exemption is a door the agency may close, not one it must.

The standard bites in court. Writing for the D.C. Circuit in 2021, Judge Millett rejected the FBI’s harm claim, carried in two “umbrella paragraphs” covering all the deliberative material, as “wholly generalized and conclusory, just mouthing the generic rationale for the deliberative process privilege itself.”

Forty near-black pages follow a rule too. Any reasonably segregable portion must be released once the exempt parts are deleted, and the page must show the amount deleted and the exemption used, marked where the deletion was made if that is technically feasible. Read the margins. Those codes are the grounds for an appeal.

The nine categories, and the ones the Pentagon reaches for

The exemptions cover properly classified national defense or foreign policy material, internal personnel rules, matters another statute exempts, trade secrets, agency memorandums, personnel and medical files, law enforcement records, financial institution reports, and geological information about wells.

The fifth swallows drafts. Inside it sits the deliberative process privilege, which protects records that are predecisional and deliberative and generally does not protect factual material. Congress capped it in 2016: the privilege does not reach records created 25 years or more before the date of the request. Old drafts open on a timer.

The first exemption is the Pentagon’s. Executive Order 13526 permits classification only where disclosure could reasonably be expected to cause identifiable or describable damage to national security and the information falls in one of eight categories, beginning with military plans, weapons systems or operations.

A blanket claim will not carry it. Secretary of Defense Panetta certified in 2012, under the Protected National Security Documents Act, that releasing detainee photographs would endanger Americans, covering every image at once. Judge Hellerstein held the certification insufficient: the statute is written around each separate photograph, so a blanket version was “conclusory as to all.”

For one identified classified document there is a second door. Mandatory declassification review makes the agency re-examine that record and offer an appeal, which ends at the Interagency Security Classification Appeals Panel rather than in court. Broad requests and whole file series should still go through FOIA.

Ninety days to appeal, and someone to call

A denial must tell the requester of the right to appeal to the head of the agency, within a period it sets that is not less than 90 days. It must also point the requester to dispute resolution from the FOIA Public Liaison or the Office of Government Information Services. At the Defense Department the appeal goes to the appellate authority of the component that issued the denial, transmitted within 90 calendar days of the response.

Appeals work, and they take their time. The National Security Archive appealed the excisions in National Security Decision Memorandum 16; eighteen months later, on January 12, 2010, the Defense Department released an unredacted version.

The Office of Government Information Services (OGIS), the federal FOIA ombudsman, sits inside the National Archives. It is a non-binding alternative to litigation: it cannot compel release, reverse a decision or force a response, though it can give both sides context.

Suing, and who pays for it

A requester may sue where the requester lives or has a principal place of business, where the records are, or in the District of Columbia. The court decides the matter de novo, may read the records in camera, and the burden is on the agency to sustain its action. That flipped burden is why suing moves records when nothing else does.

A court may assess reasonable attorney fees and litigation costs against the United States where the requester has substantially prevailed, which includes a voluntary change in position by the agency if the claim is not insubstantial. An agency that releases the file the week after a lawsuit is filed can still owe the requester’s lawyer.

Azmat Khan had to sue. Reporters Committee for Freedom of the Press attorneys sued the Defense Department and Central Command for her, alleging missed statutory deadlines and unlawful withholding. She obtained portions of a Central Command investigation through that suit, and published in January 2023 on a Kabul drone strike that killed ten civilians. She had filed the first of eight requests in late 2019.

Capacity problem, or a habit of secrecy?

The department’s managers describe arithmetic rather than policy. Its chief FOIA officer attributed the rise to loss of staff, more requests, more complex ones, and litigation, with the loss of staff the primary driver. Peck’s $660 million came out of a contract system nobody can text-search, not a decision to hide anything.

On the requesters’ side, the Reporters Committee argues that most exemptions do not require agencies or courts to weigh the public interest at all. It asks Congress for a balancing test that would compel release when the public interest outweighs the government’s interest in secrecy.

The Reporters Committee counts backlogged requests across all federal agencies rising from 115,080 in fiscal 2016 to 339,671 in fiscal 2025, an increase of 195 percent. It says the Trump administration has taken steps to dismantle the law since returning to office, that agencies have cut their FOIA staff by 14 percent according to a Washington Post report, and that the Department of Energy attempted to mass cancel FOIA requests.

One document argues the point better than either side. A file on the Rwanda genocide drew different conclusions from four reviewers over twelve years.

A State Department reviewer, Charles Daris, cut the final paragraph in 2003 for national security reasons. Another State official, Herman Kirby, restored it in 2007, then blacked out a first-page passage doubting the size of the Rwandan death toll as privileged intra-agency communication. The National Security Archive posted the versions side by side. Same words, opposite answers.

Auditors treat the problem as process. The Government Accountability Office recommended that 16 agencies post records online, designate chief FOIA officers, update regulations and build backlog reduction plans. Nine agreed, one both agreed and disagreed, two disagreed, and four neither agreed nor disagreed. In February 2026, two of GAO’s 24 recommendations were still open, at the U.S. Agency for Global Media and the U.S. African Development Foundation, neither of which had published updated FOIA regulations.

Margaret Kwoka’s research asks who is actually standing in the line. Her data show it is filled largely by people pursuing their own cases and claims, by commercial entities seeking to profit from government records, and by idiosyncratic requesters, not by journalists doing oversight.

A requester does not have to wait for that argument to end. The parts a requester controls sit at the front: the component addressed, the words used to describe the record, the fee category claimed, and the waiver requested. Everything after that is somebody else’s queue.