WatchDog: How To File a FOIA Request
By Joseph A. Davis, WatchDog TipSheet Editor
For investigative journalists, the Freedom of Information Act, while neither perfect nor fast, is a critically important tool. Image: © Clipart.com.
The public has a legal right to ask for — and see — the vast majority of government records. That right comes from the Freedom of Information Act, otherwise known as FOIA, which is a critically important tool for investigative journalists.
FOIA isn’t perfect and won’t replace other kinds of reporting. It is rarely fast. But it is powerful and easy to use.
The law, first passed in 1966, says you can get any federal government document that is not covered by one of nine exemptions. You merely have to write a letter (or nowadays an email or digital request) specifying what you want. The government has 20 working days to get back to you. If they don’t, you can sue them.
If you are slogging the treadmill of daily news, using FOIA may seem slow or impractical. But patience and persistence pay off in future stories.
Many organizations have published good FOIA how-to-do-it guides. One of the simplest is from the Society of Professional Journalists. One of the most comprehensive is by the Reporters Committee for Freedom of the Press, or RCFP. The U.S. Justice Department, which is supposed to oversee FOIA government-wide, has a good one too.
FOIA letter-generators may be seductive and even handy for the first-time requester, but you will probably want to edit what comes out of them. Check the RCFP or the Student Press Law Center, or look at the sample letter template from the National Freedom of Information Coalition.
The Basic Steps
- Decide and clearly state just what information you want. Check to make sure the information you want is not already available online. Be as specific as possible, using names, dates, case numbers, etc. If your request is too broad, it will slow down the response. Specify what format you want the information in.
- Figure out what agency (or agencies) have the information. Each agency has a person in charge of FOIA requests and its own procedures for submitting them. Here’s a list of FOIA access points for individual federal agencies. If you send it to the wrong office, it will cost you time.
- Write up your request, addressed to the agency’s FOIA officer, and including your full contact details. Although not required, you may want your letter to address things like fees (more on them later). If you are a journalist, say so.
- Follow up. If you submit your request electronically, you will probably get a tracking number. You can call the agency’s FOIA office and get your number and ask about the status of your request.
- Mark your calendar. The agency must respond within 20 working days. If they tell you they need more time, call and discuss. Sometimes narrowing your request expedites things.
- If the agency is slow to fill your request, get help and advice from a group like the Reporters Committee or the Office of Government Information Services.
Fees and Fee Waivers
When an agency gets your FOIA request, it usually has to search for the information you want, check whether it can be released and make copies of it. Agencies can charge reasonable fees from the requester for these things.
But if you are a journalist, you probably qualify for a waiver of all or most of such fees. An agency must waive or reduce the fees “if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” If that is the case, say so in your letter.
Some agencies don’t start the 20-day clock for response until they have ruled on your eligibility for a fee waiver. That’s needless delay. You can beat it by requesting that the agency start searching for your information before ruling on a waiver. Offer to pay some reasonable amount (say, $50) if the waiver is not granted.
Most agencies have certain criteria for fee waivers, and it really helps to look them up on the agency’s site and explain in your letter — point by point — how you meet them.
Expediting FOIA Requests
If you are a journalist, the normal FOIA process may seem too slow to help you with fast-paced news. The FOIA law allows you to ask for expedited processing — a response within 10 days. But you have to make a case, and these requests do not always succeed. To have a shot legally, you have to show “exceptional need or urgency.”
Your editor, of course, thinks all of your stories are urgent. But federal agencies are likeliest to be convinced if you can argue that the requested information is needed to address a “threat to life or safety.”
You might also argue that lack of the information could cause someone to lose their due process rights. The circumstances of your story may yield some other urgency for the public’s right to know.
The FOIA Exemptions
A lot of the legal wrangling over what must be (or can’t be) disclosed under FOIA is about the nine exemptions.
Secretive agencies and administrations, over the years, have tried to expand the meaning of the exemptions. Open government lawyers have pushed back. People use different numbering/lettering systems for them. You can find deeper discussion of them here.
- Properly “classified” information (national security)
- Records “related solely to the internal personnel rules and practices of an agency”
- Information that has been “specifically exempted from disclosure by statute”
- Trade secrets; confidential personal or business information
- “Interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency” — the so-called “deliberative process” or “pre-decisional” exemption
- "Information in personnel and medical files and similar files when disclosure would constitute a clearly unwarranted invasion of personal privacy."
- Six different types of law enforcement information, including ongoing proceedings, confidential sources, etc. This applies especially to information that would interfere with a pending case or deprive a person of the right to fair trial. Also, information that would endanger a law enforcement officer or witness.
- “Matters contained in or related to examination, operating, or condition reports prepared by or for regulators or supervisors of financial institutions”
- "Geological information and data, including maps, concerning wells."
Appeals: Administrative and Legal
Agencies can deny your request in whole or in part. They may redact (black out) certain information like private phone numbers. They may stonewall and delay. This happens all the time. You may want to appeal.
Delay is a common obstacle for FOIA requests. If the agency does not give you a legally adequate response within the deadline (some extensions are allowed), you can appeal the delay as a “constructive denial.”
Federal FOIA law allows two levels of appeal: the first is administrative and the second is in federal court.
Before you appeal, consider trying to negotiate. Call the FOIA office of the agency, discuss the scope of your request and try to learn more about what the problems are. Sometimes, narrowing your request can speed things up. Another option is to seek mediation services from the “FOIA ombudsman,” the Office of Government Information Services.
To file an administrative appeal, you write a letter to the agency FOIA office saying what part of their decision you disagree with and that you appeal it. The agency has 20 working days from the time it receives your appeal to make a decision on it.
Appeals will kick the decision on your request up the chain of command (possibly including upper-level lawyers and political appointees).
If your administrative appeal is unsuccessful, you can appeal the agency’s decision in federal court. Your best bet is to have a lawyer help you with this — one with experience in FOIA law.
A court appeal does not always have to be expensive. Find out whether your news organization has an attorney willing and able to handle such a case. Call the Reporters Committee for Freedom of the Press (they have a legal hotline). Scout the legal clinics and law schools in your area — you may find somebody willing to take your case pro bono (free).
State Open-Records Laws
Quite often the records you seek may belong to a state or local government agency, not the feds. Most states have some form of open-records law, although state laws may differ considerably. Typically, local governments must follow state open-records law, although enforcement may require going to court.
A good starting point for finding out about open-records law in your particular state is a link list put out by the National Freedom of Information Coalition. The Reporters Committee for Freedom of the Press also has a state-by-state guide.
* From the weekly news magazine SEJournal Online, Vol. 2, No. 11. Content from each new issue of SEJournal Online is available to the public via the SEJournal Online main page. Subscribe to the e-newsletter here. And see past issues of the SEJournal archived here.