Freedom of Information Act Fundamentals
FOIA is a muscle environmental journalists need to exercise to keep strong.
The Freedom of Information Act (FOIA) was enacted in 1966 to assure the people's right to know what government is up to. Simply put, all agencies of federal government are required to disclose all identifiable records upon written request, unless they fall within nine exemptions.
Sounds simple, but you'll find pitfalls, too, in the long waits for many FOIA replies, redacted information, surly or passive-aggressive FOIA officers, an increasing difficulty obtaining fee waivers despite clear case law. These can be discouraging. Quill published an incisive article on FOIA history after 30 years of use. The first advice many people give is to avoid the FOIA and get the information directly from the source if you can.
But if you need to fish in deeper waters, or cast a wider net, you need to use the FOIA.
Journalists have some privileges under FOIA unavailable to the general public. We don't have to pay search fees, for instance. Nor do we pay copying fees for the first 100 pages of material, or more, if a waiver is granted. Nor do we have to wait months or years if we can make the case for expedited treatment by showing "urgency to inform the public" about what the government is doing.
Otherwise, journalists face the same hurdles — and opportunities — as any other citizen. FOIA has become an indispensable tool for probing actions of government and the companies and people that come into contact with government. Your catch is only limited by your imagination.
Filing a FOIA can be as simple as a fax saying, "This is a FOIA request for <whatever you want>" — or as elaborate as the Reporters Committee's Fully-Automated Fill-in-the-Blanks FOIA Letter Generator.
The federal FOIA does not provide access to records held by state, county or local governments. Those are usually covered by state records laws. You should become familiar with yours. The Student Press Law Center offers a Fill-in-the-Blanks Letter with boilerplate language for each of the 50 states.
Here are some tips for making the most of your FOIA:
Just do it. Use the open records law. Use it again and again. As a journalist, you don't have to pay for search time under the FOIA. You go to the front of the line if you can show "urgency to inform the public" on government activity. You need to exercise these muscles.
A good definition of what you want.
Cover a subject broadly by requesting "all releasable records concerning <something or somebody> since <any date>." Or narrow your request to a specific type of record; you may find it helpful to read an agency's own regulations to tell them exactly what you want. You may attach a copy of the type of record you want and ask for all other records of its type (horizontal search) or all other records concerning the subject of that one (vertical search).
Talk it over. Often, of course, it helps to talk to a few people in the agency to figure out what you really need. It's best to talk to regulators, inspectors or enforcement staff. How do they document their actions? What do they call their complaint/mistake forms? How can you get it on a computer? A helpful background source is, always, a jewel to be treasured. But don't be put off by the lack of that. Go ahead and fish for records. Cast a net. Make them haul it in for you.
Speed it up. Narrow your request. Use the fax. Send it to the local or regional office instead of headquarters. Explain why it's urgent. Call them back in a day or two. Set a deadline. Ask for access instead of copies. Ask for a summary instead of the whole file. Ask when you can drop by. Call them back again.
Use the time limits and fast tracks in the Electronic FOIA of 1996. Although this law lengthened the time limit for initial agency responses from 10 days to 20 days, it also said agencies have only 10 days to say whether they will give expedited treatment when requested by news media. Agencies must also provide an expedited appeal process for that decision. Agencies need to set up a faster track for easy requests and a slower track for more difficult requests. Each track goes first-in first-out. So you may wish to FOIA bite-sized pieces to get on the fast track. If an agency cannot furnish the requested records within 20 days, it must notify you and provide an opportunity to limit the scope to speed it up. And people "primarily engaged in disseminating information" — that's us — move to the front of the line when seeking information that tells people "what their government is up to." So even if you're seeking information on a private party, couch your request in terms of actual or alleged government, not private, activities.
R&R (Redact & Release). If part of a record is exempt from disclosure, the agency must redact or remove that part of the record, and release the remainder. Stated another way, all segregable non-exempt portions must be released even if other parts of the record are deleted. Get the redacted record. Then you have something to start with.
Work with what they have to give. Don't get tied up by the exemptions. Think about the flip side: what is NOT exempt. One good approach is to check the court cases and regulations under 5 U.S.C. § 552. Here are some of the best tactics for getting past the exemptions:
- The privacy exemption. The FOIA allows an agency to weigh the public interest in disclosure against the privacy of the people named. The Supreme Court has held the only acceptable public interest was the extent to which disclosure would shed light on government operations or activities. So as stated above, be sure to cast your purpose as shedding light on government operations or activities.
- The internal-agency memoranda exemption. Fight back using the two magic words: redact and release. If you expect to encounter this exemption, let the agency know in your first letter: Factual parts of pre-decisional documents are not exempt and must be released. The agency must make a case of "foreseeable harm" to trigger the exemption, and even in that case, the agency can make a discretionary disclosure of internal agency memoranda.
- The trade secrets exemption. Applies to information individuals or private businesses supply to the government if it would cause substantial harm to that person or business or impair government's ability to obtain that information in the future. Does NOT apply to documents the government prepares based primarily on information the government gathers from outside sources. Does NOT apply to information that has been publicly disseminated. So look to see who wrote the record and whether it is referenced in any public setting.
- The law enforcement exemption. Applies to open investigative files in ongoing or potential enforcement proceedings. OK. That makes it difficult to argue with the keepers of the secret file. But work with what they do have to give. For example, when a case has gone to trial, or resulted in civil penalties, or not been sustained — in other words when the case file is indisputably closed — then ask for the investigative file.
The Reporters Committee for Freedom of the Press gives free legal help at 800-336-4243 or 703-807-2100; publishes the best handbook, "Federal Open Government Guide"; offers an automated fill-in-the-blanks FOIA form; biweekly updates by email on news media legal developments; and much more.