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FOIA strategies, tactics for working journalists

Author: Michael Ravnitzky


Published: October 01, 1997
Last Updated: May 26, 1999
Filing Freedom of Information requests can be daunting, but its becoming easier; here are some tips
on filing and overcoming bureaucratic sluggishness
By Michael Ravnitzky
The burden and time involved in filing federal Freedom of Information requests sometimes deters
news professionals from tackling the job.
Take it from me, though, that FOIA is one of the journalists best friends if its filed early enough in the
process. I know. Ive filed a few thousand requests.
The primary thing to remember about FOIA is that the law requires agencies to grant access to
records unless the records fall under narrowly defined exemptions. Interpretation, though, is the
requesters job.
Agencies are under no obligation to create records to respond to a request, interpret records that they
have, or even answer simple questions. What may seem to be an advantage for the cagey bureaucrat
can actually become the journalists secret weapon. You are free to request all sorts of seemingly
innocuous records for a story and get them, and may not be asked why the records were requested.
The image problems
One of FOIAs image problems has been its reputation for taking too long to be a practical research
tool for journalists. This has been attributed to request backlogs in agencies and journalisms tight
deadlines. This is less true now than before. Most agencies have reduced and, in many cases,
eliminated backlogs and will respond quickly to faxed or e-mailed FOIA requests.
Another image problem has been that of the surly, uncooperative FOIA officer. Now though, tired of
being considered the enemy, many officers are actually becoming customer friendly. In filing FOIA
requests, Ive only run into a handful of situations where it seemed that the FOIA office staff was
intentionally trying to steer me wrong.
Many officers are performing their jobs properly. They respond quickly, include telephone numbers
and FOIA case numbers in their correspondence, allow the requesters to contact them and ask about
their request. In some cases, staffers will use e-mail to speed up the process, such as telling
requesters where their requests are being forwarded, getting clarifications, etc. The officers bad
reputations stem largely from years of failure to follow through on these basic customer service
functions.
One annoyance that hasnt been totally overcome yet is when the FOIA office accepts without
question the claim from the originating office that documents are exempt from release or simply dont
exist.
Why do other offices send such erroneous statements through the FOIA offices?
Poor training. Its never been released before; why should it be released now? The administrator may
not realize that some laws have changed recently.
Narrow interpretation. Under the law, officers must interpret a request broadly. It may be that they
have interpreted the request narrowly and extremely literally and disingenuously disclaim any
knowledge of any pertinent records.

Reluctance. Perhaps the agency office does not want to release the records and assumes that an
exemption applies when it actually doesnt.
In any case, the FOIA office should not deny records without examining them.
How to do it
The statute and its regulations say that an agency must follow certain procedures in responding to a
FOIA request. Although no specific format or language is required in the request letter, you should, at
a minimum:
Mention FOIA or the Freedom of Information Act.
Describe the records requested carefully, perhaps splitting them into sections from most specific to
least.
Agree to pay the required fees up to a specified amount.
If records are denied or an agency takes too long to respond, an appeal can be filed. While the
requester might benefit from a lawyers advice, he or she could certainly proceed alone.
Most FOIA appellate authorities want to see an appeal written in clear, simple language with a
statement of why the original decision was incorrect. While legal arguments are helpful, they are not
essential.
Although in court a mistake can be terminal because the exact case cant be brought again, FOIA
decisions have little or no precedential value. A mistake can be rectified.
Many exemptions cited by agencies can be appealed using common sense. For example:
Agencies sometimes deny the release of records by invoking national security with the b(1)
exemption. These are often based on unfounded assumptions as to whether the record is currently
and properly classified, perhaps because it was classified years earlier and never reviewed thereafter.
To appeal this exemption, you can question whether the document was reviewed for declassification.
Or, as an alternative to FOIA, you can request a Mandatory Declassification Review.
Certain records which previously fell under certain exemptions, like the so-called b(2)-low or b(5), are
now generally releasable under Attorney General Renos 1993 FOIA guidelines, unless foreseeable
harm will occur through release.
When an agency has denied an entire record or lengthy set of pages, the requester can appeal
because the agency failed to break down what it could release down to the paragraph or sentence
level if necessary. An agency is required to provide "reasonably segregable portions" or a document.
Parallel requests and negotiation
Some agencies process requests in a centralized manner through one office. In other agencies, each
office or department processes the request itself.
The people in a central FOIA office are not always familiar with the requested records or unsure
where to refer the request. In addition, agencies frequently fail to send copies of a request to all
offices that may have responsive records. Thus it may be necessary for you to file requests in each of
these offices.
The Department of Justice distributes a partial list of central FOIA offices in issues of its FOIA Update
newsletter, which is also posted on the Internet. This publication disseminates legal guidance to FOIA
offices, but is also useful to requesters. Remember, though, whether its in a directory or not that
almost any federal government office including regional offices is subject to FOIA.
FOIA is often a bargaining process. If necessary, leave yourself some bargaining chips in the original
request.

FOIA offices periodically report on the number of partial and full denial decisions issued each year.
Apparently, partial denials appear more administratively palatable to management than full denials, so
there may be an incentive to provide you with some information even if it is less than complete.
Some requests are considered "difficult." These include those records that may be embarrassing to
the agency, those that other components of the agency are reluctant to release, or those that require
detailed review.
This can be turned to your advantage. File your "difficult" request between (but in the same letter as)
two more difficult requests, making it appear easy in comparison. The agency may be willing to
negotiate your withdrawal or rescoping of the more difficult requests in exchange for prompt
processing of the middle one.
In addition to gathering basic documents, FOIA can be used:
To request agencies strategic plans, annual reports, committee or board meeting minutes over a
period of time.
As a bargaining chip to encourage the public release of documents.
To force a policy decision when no administration policy statement has been forthcoming. If one
requests all documentation on a sensitive matter, the request is likely to receive high-level attention.
To bring a complex or contentious matter to the attention of senior officials, as it is those officials who
must sign an appeal decision.
There are other options. Frustrated requesters have shared form letters with others interested in
researching a subject, in effect encouraging them to file a request for the same material.
This way, one denial turns into 50, which can force the agency to reconsider. This works best when
the agency receives several requests at once rather than scattered over a long period. This can also
be used to get an important document more quickly, as more requests can increase the priority of a
request.
The FOIA case log
A FOIA case log lists all requests received by an agency each year. Most agencies maintain such a
log, usually in a spreadsheet, computer database, or handwritten log.
The case log not only shows who else is interested in and requesting records from an agency, but lists
the subjects of the records being requested. Using these records, a requester can learn from the
mistakes and successes of requesters who have gone before.
Once you receive a log, you might request copies of request letters, the response letters, and the first
100 pages of the records provided to each requester.
Be nice
Requesters should try to make things easier for the FOIA office whenever possible. Here are some
ways to write requests that do it:
"I request a copy of ALL meeting minutes for the Board for the past three years. However if the Board
meets more often than 4 times per year, you may send me the meeting minutes from the past two
years only."
"I request a copy of the full report on X. However, if this will result in more than 500 pages, you may
send me only the first 100 pages and the last 100 pages of the report, to include the table of contents
and references."

"Please send me a paper copy of the requested record. However, if the same data is available in
electronic form or microform, please send me a disk or fiche instead if it will be less expensive."
If you make things easier for the FOIA officers, they may make things easier for you.
In fact, it is already getting easier. I have observed, based on case logs, that things have been
improving in most agencies over the past five years. Written correspondence from FOIA offices is
becoming more useful. Unacceptable case backlogs are being reduced, and in many cases
eliminated. In most agencies, delays have been reduced to a reasonable time. Some agencies, even
larger ones, such as the Department of Energy, Nuclear Regulatory Commission, and the Federal
Reserve Board pride themselves on quick response times.
FOIA and the several other open government laws are becoming ever to those who know how to use
them. If a reporter can file early enough, it can be one of the his or her best friends. But the stigma of
the slow and laborious process will be the hardest obstacle to tackle.
Ravnitzky, a second-year law student at William Mitchell College of Law in St. Paul, Minn., is a freelance writer. He is writing a book on the FBI files of famous Americans.
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