Law Firm Tips

Effective Use of Freedom of Information Laws

By Levine Sullivan Koch & Schulz, L.L.P.

Federal and state freedom of information (FOI) laws require public access to most records maintained by governmental bodies.  The federal statute creates a presumption of access to all records, and then identifies nine specific categories of information that may be withheld from the public: (1) properly classified national defense and foreign matters, (2) information related solely to internal agency personnel rules and practices, (3) disclosures forbidden by other statutes, (4) trade secrets and certain financial information, (5) some inter- and intra-agency memoranda, (6) “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy,” (7) several categories of law enforcement records, (8) records of bank examinations, and (9) geological information relating to oil and gas wells.

FOI laws are easy to use and can be an important tool for journalists.  Most require a simple written request that does not need to be in any particular form so long as the request is clear and specific.  The following tips will help you exercise your right to inspect government records effectively:

* Right place, right procedure.  Before filing a request, make sure that you are sending it to the right agency and the right location.  For example, requests to different parts of the Department of Justice, such as the FBI and the Bureau of Prisons, will be processed more quickly if they are directed in the first instance to the specific unit most likely to have the documents you are seeking.  Check the agency’s Web site - it is also likely to have important information about filing a request that will help avoid delays.

* Make the request precise and clear.  Overly broad requests, such as those that ask for “any and all documents,” are invitations to delay.  Be as narrow and specific as you can.  And remember that the person reviewing your request may not be familiar with your subject, so keep your request simple and clear.

* Ask for expedited treatment, if appropriate.  Under federal law, you can request expedited treatment when there is a “compelling need.”  This includes the urgency of a person “primarily engaged in disseminating information” to inform the public about actual or alleged federal government activity.  Some agencies, such as the Department of Justice, allow expedited treatment in other circumstances.  Again, check the agency’s Web site.

* Ask for a fee waiver or reduction.  In most cases, agencies are entitled to charge fees to search for and duplicate records.  You should not have to pay fees if disclosure of the documents is likely to make a significant contribution to the public’s understanding of government operations or activities.  And only standard copying fees should be charged when the request is from a representative of the news media.  Recent changes to the law expanded the definition of a representative of the news media, but these new provisions have not been tested.

* Specify upfront the amount you are willing to pay.  In any request, specify the amount of charges you are willing to pay without the agency having to check back with you.  This can save a round of letters and will avoid delay.

* Be persistent.  Don’t just wait after filing the request.  If you haven’t heard back within a reasonable amount of time, send a follow-up letter to show you are serious.  Keep a record of your correspondence including any phone calls.

* If denied, file an administrative appeal immediately.  Your request will get a second look in an administrative appeal, which is easy to file.  Agencies often have strict time limits for appeals, so don’t delay if your request is denied initially.  In most cases, an agency has 20 days to respond to a request.  Inaction for longer than this — called a “constructive denial” — normally is treated the same as an actual denial, and can be appealed at any time. 

* File a lawsuit.  If an administrative appeal is denied, or if the agency fails to respond within the time limits provided in the statute, you can file a lawsuit.  This frequently gets the agency’s attention, and prompts an in-depth review of the request.  However, litigation can be time-consuming and expensive.

* Try to recover your costs.  If your lawsuit results in a release of information, you may be able to recover your costs and attorneys’ fees.  Changes made to the federal law in 2006 now mean that a requester who has “substantially prevailed” in litigation is eligible to recover costs and fees.

* Other resources.  Many Web sites have helpful information, and several provide fill-in-the-blank FOIA letter generators.  Some of the best include the Reporters Committee for Freedom of the Press (http://www.rcfp.org/foia/), the National Security Archive (http://www.gwu.edu/~nsarchiv/nsa/foia.html), the Electronic Frontier Foundation (http://w2.eff.org/bloggers/lg/faq-FOIA.php), and the Student Press Law Center (http://www.splc.org/legalresearch.asp?maincat=2).