Sign Up For Our Mailing Lists


Allies

Getting Government Records: How to File a Successful Freedom of Information Act Request

by Lisette Garcia
September 01, 2012

The Freedom of Information Act (FOIA) (5 U.S.C. § 552) permits anyone, anywhere to obtain, upon request, an existing federal record used in executive branch business that is not already publicly available on a government website. Agencies must notify requesters within 20 days (excluding weekends and federal holidays) whether they intend to fulfill requests and, if not, why not. Requests can be denied based on several exceptions to compulsory disclosure, discussed below, or because a request lacked information.

Elements of the Request. The rate of success in having FOIA requests promptly fulfilled dramatically increases with the inclusion of several key items:

Who: Identify the department, agency, component, division, bureau, or office most likely to possess the record you seek. If you are unsure, call a FOIA Liaison whose job it is to help you. You can find a directory of FOIA Liaisons at: www.foia.gov/full-foiacontacts. xls. Addressing a request to a named FOIA staffer helps avoid later claims of lost mail by building accountability should your case reach litigation.

What: If the information is recorded on a preprinted form, cite that nomenclature in your FOIA request. (E.g., a green “return receipt requested” card is officially known as Postal Service Form 3811 or PS 3811.) Also, if what you seek is associated with buzzwords, supply them to the agency so that it can craft an effective search. However, steer clear of terms contained in any of FOIA’s nine exemptions, discussed below, as these can trigger unwarranted denials by inexperienced agency personnel. (See: 5 U.S.C. § 552 (b)(1)-(9).) Also, be sure to specify your format and delivery preferences. To the extent an agency is set up to do so, and doing so is efficient, the agency is required to meet your express wish to receive records electronically or to receive raw data in their native tables.

When: An agency may speed up—or, expedite— disclosure where a “compelling need” is shown. Under FOIA, “compelling need” generally means that, without the requested records, someone risks losing life or limb. Among news gatherers, though, it means an urgency to inform the public about actual or alleged federal government activity. An agency has 10 days to decide whether to expedite a FOIA request and must decide appeals equally expeditiously.

Where: In addition to addressing the correct FOIA contact, be sure to direct your request to as many offices as may hold a copy of the same record. Addressing various agencies simultaneously improves accountability as well as one’s rate of return. Where possible, indicate, too, the particular records systems to be searched. If you are unsure, consult a FOIA Liaison as well as an index of the agency’s files, also available upon request. While bureaucrats cannot purposely ignore what they know about where your document is kept, they are not held liable for ignorance or honest mistakes.

When: A FOIA request must be filled without regard to a requester’s purpose except as that purpose justifies expedited processing, discussed above, or the waiver of associated fees, discussed in the next section. Hence, if an agency ever calls you to ask “What you are truly after?” for the purported objective of helping you reach your target faster, ask the caller to put his or her question to writing. Asking the agency to put a question in writing will scare off most improper attempts to alter a request while preserving evidence of those that persist in the event your dispute reaches litigation.

Finally, beware of substitutes! FOIA does not require creation of a record. So, if an agency offers to produce a substitute in place of delivering what you asked for by name, suspicion is warranted.

Cost. Standard rates for processing a request are set by individual agencies subject to guidelines published by the Office of Management and Budget. Requesters seeking records for commercial purposes must pay for search, review, and duplication. Such fees must be waived or reduced, however, where other conditions are met. For instance, if you articulate a substantial public interest in the material requested and can show that you are in a position to disseminate the information widely, then you may fall into the educational/media requester category. The fact that your school or newspaper turns a profit is not fatal to a request, so long as making money is not the primary aim of the report. When requesting a waiver or reduction of fees, focus on the public interest at stake: Identify how the average citizen needs the requested information in order to take action or otherwise adjust his affairs. The request must also contain a promise to pay in the event the agency declines your fee request. Expressing a threshold amount, e.g. $250, is a sensible way to satisfy the obligatory pledge to pay while avoiding incurring an exorbitant obligation, the nonpayment of which will block all future requests from you to that agency.

Response Time. FOIA contains several safe harbor provisions excusing agency delay. For instance, the clock can stop for up to 10 days while an agency obtains further clarification from you on the scope or cost of your request. An agency may also take up to 10 days to forward requests internally. Prompt resolution of any agency confusion underscores the importance of making direct contact with named FOIA staff early and often. Also, because all agency contact is legally significant, follow each phone call with an e-mail which includes details of what was discussed and agreed to.

Beyond administrative delays, agencies may also face unusual or exceptional circumstances. An unusual circumstance warrants, at most, a 10-day extension and entails distant, voluminous, or shared records. Due process entitles a requester to a written notice of the expected delay that describes the unusual circumstance and sets an estimated date of dispatch. An exceptional circumstance involves extensions longer than 10 days but cannot be based on predictable agency workload unless substantial progress in reducing its FOIA backlog is shown. A requester’s unwillingness to narrow a burdensome request can be treated as an exceptional circumstance for purposes of justifying an agency’s failure to fulfill on time.

Exemptions. In drafting your request or appealing a deficient production, bear in mind the Freedom of Information Act’s exemptions (5 U.S.C. § 552 (b)) in order to avoid employing pitfall language that can prompt an automatic denial.

An agency has no discretion to disclose and must withhold all documents that are either classified by Executive Order or made confidential by other legislation. An agency has total discretion to withhold information on personnel rules and agency practice; trade secrets or financial information obtained on the promise of confidentiality; legal advice within the agency or internal discussions of policy alternatives not adopted; personnel files not about the requester with marginal impact on the public interest; law enforcement records about a specific proceeding which disclosing would circumvent; records collected in the supervision of financial institutions (but only analysis, not facts); and geological and geophysical information and data, including maps, concerning wells.

Appealing a Withholding. You should review the material produced in response to your FOIA request in order to evaluate whether any withholdings were proper. The agency’s cover letter is called a determination and it must say where to file a challenge and how soon. The determination must also contain the agency’s rationale for refusing your request, even in part. Your challenge is called an administrative appeal and amounts to a letter to the head of the agency complaining about any defects described above. The letter should close with a request that the agency compel appropriate personnel to undertake a new search and issue all responsive documents in a more compliant manner.

Your appeal should be brief, but must contain sufficient evidence to persuade the agency to reverse its initial decision. The ideal appeal contains at least: a copy of the agency’s determination, a copy of your original request, and sample pages from the production representing its most egregious FOIA violations. An agency has 20 days to decide an administrative appeal and may take many more days than that to issue an amended production.

Should You Sue? If on appeal an agency affirms any of its initial withholdings, you can file a lawsuit in the federal court where you live or in Washington, D.C., asking a judge to force the agency to comply with FOIA as regards your request. The complaint can be filed without an attorney but in accordance with court rules, including those respecting format and filing fee. The court decides the dispute anew, without reference to your administrative appeal. If the agency discloses documents in response to the lawsuit, you may be entitled to attorney’s fees, but only if you are an attorney or are represented by one. Additionally, if your record of contact with FOIA staff proves that the agency abused its authority in processing your request, the court may refer the matter to Special Counsel for investigation.

Ms. Garcia is a Senior Investigator at Judicial Watch, a nonpartisan, nonprofit watchdog organization that specializes in using open records laws to promote transparency, accountability, and integrity in government. For more information on how to file a Freedom of Information Act request, see Judicial Watch’s Freedom of Information Act and Open Records Handbook available at www.judicialwatch.org/open-records-laws-and-resources.


Sidebar: Freedom of Information and State Governments

State governments are not subject to the Freedom of Information Act, which is a federal law. However, all 50 states have their own versions of open records laws. For information about the open records laws of particular states, check the website, www.nfoic.org/state-foi-resources, maintained by the National Freedom of Information Coalition.


Sidebar: Judicial Watch Can Help You

If your conservative nonprofit public policy group has a worthy Freedom of Information Act request to make, Judicial Watch may be able to help. Through its Open Records Project, Judicial Watch shares its expertise in open records research and litigation. Judicial Watch can provide technical, research, and litigation assistance to groups seeking critical information about government activity. Judicial Watch can help in any step of the process: determining what agencies have the information needed; defining requirements and composing document request strategy; making the request; reviewing information and providing analysis of document production; handling denials, exemptions and the appeal process; managing the court process; getting the information into the hands of the general public and raising media awareness.

For more information, please call (202) 646-5172, or send an e-mail to openrecords@judicialwatch.org.


Heritage FoundationInsiderOnline is a product of The Heritage Foundation.
214 Massachusetts Avenue NE | Washington DC 20002-4999
ph 202.546.4400 | fax 202.546.8328
© 1995 - 2014 The Heritage Foundation