Q. Can a government agency make a rule that would require a certain set of persons making a FOIA request to satisfy different requirements than any other requesters simply because the certain set is made up of U.S. Government employees? Perhaps more simply and broadly: Can an agency limit the private FOIA rights of any federal employee? For example, DoD has advised its FOIA liaisons to administratively close as "not a proper FOIA request" any request filed by a member of a group of DoD employees if the person fails to "demonstrate prior approval" from a government supervisor to make the request. This seems unenforceable on several grounds: first because it hinges on the identity of the requester; second because it involves an inquiry into the "circumstances" of the request; and third because it seems the policy is not based on published FOIA rules.

A. Whether a reporter for Stars and Stripes (S&S) may submit FOIA requests to federal agencies is an interesting issue, though not a new one. Indeed, the newspaper’s ombudsman addressed the problem in an instructive article published in 2016. In sum, we agree that an agency may reject a FOIA request if it is submitted on behalf of S&S, because the newspaper is a component of a federal agency and federal agencies are precluded from making FOIA requests. No regulation or rule is required to be published for an agency to enforce this statutory limitation.

To circumvent the statute, an S&S reporter might attempt to submit a request in his or her personal capacity or on behalf of a different media organization. But an agency is entitled to inquire, for fee purposes, how a requester intends to use requested records and it need not blanketly accept the requester’s assertions. If, for example, an S&S reporter claims to be working on behalf of a different media outlet, an agency may require evidence to that effect—for example, a copy of an agreement with that outlet. And if an S&S reporter is required to get prior approval to engage in outside reporting activities, the absence of such approval would undermine the reporter’s claim.