Door 4. How to Create Productive Records Requests

Have you hit a wall in your reporting on a public agency?  Are you seeking undisclosed facts about some organization’s dealings with government?  Would you like to scrutinize a public official’s conduct?  Filing a carefully constructed freedom of information request (or two or 10) can uncover newsworthy information.

You may even go beyond an occasional request.  EveryBlock.com (http://www.everyblock.com) is a neighborhood news filter that has perpetual freedom of information requests filed with cities around the country.  The resulting records, such as record inspection reports, automatically feed into a news filter and searchable database that’s available to the public through EveryBlock’s Web site.

Before you file a freedom of information request, make sure the information isn’t readily available online or by simple request.  That will take some online research and perhaps a telephone or e-mail dialogue with government agency personnel.  The results of this research will also help you to formulate productive freedom of information requests down the line. 

We Asked Levine Sullivan Koch & Schulz, L.L.P. for tips for effective use of freedom of information laws.  Read their reply.

If you can’t get the information through research and contacting sources, or if you’re told that to get the information you must file a freedom of information request, here are some tips to help ensure your request is productive:

1.  Carefully consider how you can narrowly and accurately describe what you’re seeking, so as to improve your chances of getting the information you need, rather than an exorbitant cost estimate for a whole lot of documents that may have little value to you.

2.  Don’t be afraid to pick up the phone and call the agency whose records you’re seeking.  Find out how their records are kept and get a dialogue going on how you can narrowly and accurately pinpoint what you’re seeking.  A clearly worded, narrowly focused request is likely to result in a less expensive and much quicker response.  According to Anissa Hunter, a freedom of information specialist at the federal Parole Commission (who is easily accessible by phone), simple requests for under approximately 20 pages of records are generally fulfilled within 20 days.  More complex requests get added to the agency’s backlog, currently running more than a year.

3.  Provide a cap on the maximum amount you’re willing to pay for a records search.

More About Costs

Try to keep your request simple and the number of responsive pages under 101.  That way your request can be fulfilled for free.  More complex requests can be costly.

According to the Department of Justice, which offers on its Web site extensive freedom of information resources for all federal agencies, when it comes to assessing fees, there are three categories of requesters:

“[C]ommercial requesters may be charged fees for searching for records, ‘processing’ the records (i.e., reviewing them to determine the possible applicability of FOIA exemptions), and photocopying them . . .

“[E]ducational or noncommercial scientific institutions and representatives of the news media are charged only for photocopying expenses, after the first one hundred pages of copies.

“[A]ll other requesters, are charged only for record searches and photocopying—and there is no charge for the first two hours of search time or for the first one hundred pages of photocopies or their cost equivalent.”

If you’re a blogger or citizen journalist and are unable to persuade a federal agency that you qualify as a representative of the news media, you still may obtain a fee waiver if, according to the Justice Department, you “can show that the disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations and activities of the government and is not primarily in the commercial interest of the requester.”

In a telephone interview, a woman who identified herself as Patricia S. and as the chief of the FOIA branch at the Central Intelligence Agency, said that if you’re seeking a fee waiver under the public interest category you must explain why, in a letter to the agency, the information you’re seeking is of current interest to the public.  Decisions are “case by case,” she said,  and few public interest waivers are granted.  From February through September 2008, for example, the CIA received 48 such fee waiver requests; 22 were denied, 9 were granted, 6 remained pending and 11 were mooted, some cases because the search could be performed without any fee.

4.  Consider whether you’re eligible for expedited handling of your request, especially if the information you seek is in the public interest.

More About Expedited Handling

According to the Department of Justice:
“[Requests can] be processed on an expedited basis if made by a person primarily engaged in disseminating information to the public and the information is urgently needed to inform the public concerning some actual or alleged government activity. . . . Similarly, the Justice Department also expedites requests when the subject is of widespread and exceptional media interest and the information sought involves possible questions about the government’s integrity which affect public confidence. Expedited processing decisions for initial requests on this latter basis are made by the department’s director of public affairs.

“A request for expedited processing must be accompanied by a statement setting forth the reasons why your request should be expedited. You should certify that the reasons you have given are true and correct. The component will be required to notify you of its decision about whether to grant expedited processing within no more than 10 calendar days after receiving your letter. If the component denies your request for expedited processing, you will be advised of your right to submit an administrative appeal of that denial, which will be handled expeditiously.”

5.  Ensure that your request is dated and that you have an accurate record of the filing date.  This can be important when it comes to securing your rights should your request be met with an unreasonable delay or denial.

6.  Find out whether your request must be sent by letter, whether there is some mechanism on the government agency’s Web site for filing electronic requests, or whether you may send the request by e-mail.  The CIA, for example, takes letters only by mail or fax.  E-mail isn’t an option.

7.  Unless there’s an electronic filing mechanism, find out to whom your request should be addressed.  Is there a freedom of information officer at the agency responsible for handling your request?  Often this information is available on agency Web sites.  If not, call up and find out (and use that opportunity to get as much information you can, so you can narrow your request and up your odds of success).

8.  In drafting the request, include the following:

Your name and contact information.
The agency and contact information for that agency’s freedom of information officer.
A clear description of the records you’re seeking.
Your fee category and whether you’re entitled to an exemption, and the maximum you’re willing to pay.
For federal agency searches, say whether you’re seeking expedited review and the reasons you’re entitled to an expedited review.

Freedom of Information Drafting Activity

The Reporters Committee for Freedom of the Press has a terrific state-by-state resource that allows you to look up and compare freedom of information laws across many categories of information, such as relating to fees and response times and recourse.  Here’s the link:
http://www.rcfp.org/ogg/index.php

Here is a helpful list of principal FOIA contacts at federal agencies:  http://www.usdoj.gov/oip/foiacontacts.htm

Next: Door 5. Following Up On Records Requests

(c) Geanne Rosenberg