TALKING THROUGH FOIA PROBLEMSTALKING THROUGH FOIA PROBLEMS

David Jackson, Reporter, the Chicago TribuneDavid Jackson, Reporter, the Chicago Tribune

Reach out to agency officials before you file a FOIA, and encourage dialogue at every step of the process.

Some tips to trouble-shoot problems and expedite records release.

 

• Be sure your FOIA request is going to the right official.

• If you cannot reach the FOIA officer directly to confirm, contact the agency's general counsel, the press officer or the head of the agency.

• If the agency does not immediately respond, file your FOIA but quickly follow up to ensure it got to the right place. Add: "Please contact me immediately if this FOIA presents any undue burdens or problems."

• Prior to filing, describe your request.

• Ask: "Have you handled this type of FOIA before? ... Have other people sought this sort of information in the past? Did any particular problems crop up? ... Is there anything I should know in advance that will make your work easier and get me the records faster?"

• Try to get a concrete picture of what is entailed in producing the records.

• Some production burdens can be eased or avoided.

• Ask if the agency has suggestions that would expedite release and consider any points they make.

• When redaction is not the issue, try to collaborate or ease the load: "Can I come over and look through the boxes before you go through the trouble of copying them?"

• Resolve cost issues upfront.

• Ask: "Does your agency charge fees for their searching, retrieval and copying? If I request a fee waiver, should I include that in the FOIA or does that request have to be made separately?“

• Ask the FOIA officer if there is any terminology that would make the request easier to fulfill.

• If you remain uncertain, file a request seeking "records sufficient to show..."

• Bird-dog any request you file. Make it clear that you're aware of the legal timelines for response.

• Make careful notes of your contact with agency officials. Keep a simple call log.

• Send confirmation emails concisely reporting the gist of phone conversations: "As we just discussed . . . . "

• Some FOIA officers appreciate the chance to share their experience or expertise, and are justifiably proud of their public service. Express thanks when that's appropriate.

• Before filing an appeal, try to challenge any denials in a conversation with the FOIA officer -- or with the agency PIO, general counsel or chief. A dialogue may resolve obviously unfounded exemptions.

• Even if you're genuinely angry, stay off your soapbox.

• Approach government officials as professional colleagues and focus on resolving concrete, technical issues.

• When denials do not include a specific basis for each exemption, explain that you are entitled to a factual, reasoned basis for any denial.

• Explain that the lack of specificity may be grounds for an appeal or legal challenge that could overturn the denial.

• Evolving personal privacy laws have heightened the reluctance of government officials and undermined journalists' access rights. Try to determine if the requested records contain specific data fields that you live without, and how much work redaction entails.

• Make a forceful public interest case for release of the requested records. Explain specifically why in this case the requested records are:

• a) meaningfully informative about government operations;

• b) "likely to contribute" to an increased public understanding of an important topic; and,

• c) not already in the public domain.

• Explain that you are going to write about the agency's denial -- if indeed you intend to do so -- and say you need a quote or interview explaining the denial.

• Even as your appeal is pending, file new FOIA requests for vital and gettable parts of the information. Now that you understand what they aren't willing to provide, go back to square one and think about what else you might request and get.

• When you encounter unwarranted hostility or illegal obstruction, your job is to represent the public's right to their records, and to do so in a way that will stand up in court and in the high-stakes court of public opinion. . . .

• Observe the highest personal and professional standards as you interact with government officials.

• Act as if a tape is being made of every word you utter and every deed you do. Conduct yourself in a way that would make your newsroom and readers proud.

• Keep your eye on the ultimate goal: publishing information that is held by the government agency but belongs to the public.

• And keep copious notes!

Jack Gillum, APJack Gillum, AP

The federal FOIA, 5 U.S.C. 552-Access to records of federal agencies in the Executive Branch.-Usually, the agency has to provide a good reason for holding records back. The nine exemptions:

Averting problems from the start• Be as specific as you can. Asking for “all emails sent to

or from Deputy Undersecretary John Jones since the beginning of time” will likely set your request back months -- or years.

• Go to the correct agency. For many federal FOIAs, knowing the right records custodian is half the battle. Conversely, the same documents or data you’re seeking may be at another agency, with potentially more-promising results.

• Give a good reason why your request should be expedited. Just being a member of the press isn’t enough, especially in light of some agency regulations.

Dealing with delays• Stay on top of your request. Federal agencies have 20

working days to respond to your FOIA. A friendly call to the FOIA office doesn’t help.

• Ask for documents on a “rolling basis.” This prevents the FOIA office from waiting until they have everything responsive before putting it in a big box or on CD. Asking for your documents may also slightly speed up copying delays.

• Be nice . FOIA officers have to deal with a lot of requests — most of which are not from journalists, and some are from folks who think Apollo 11 was staged in Hollywood. So, be courteous. A handwritten note to a very helpful FOIA officer couldn’t hurt.

When things go wrong• Push back. The law allows a requestor to appeal. Sometimes, the FOIA

officer either didn't fully understand (or read) the letter. Clearly state your reasons under the law why your records should be released. (See the Reporters Committee guides at rcfp.org).

• Go to OGIS. The Office of Government Information Services is a nascent agency in the National Archives charged with, among other things, mediating FOIA disputes. You should administratively appeal your request first before going to them.

• Go nuclear if it’s really egregious. If an agency wants to charge you $50 million, go to the press office and say this is fodder for a story. (It’s newsworthy if an agency is deliberately obfuscating your request, especially if the records are of public importance.) You might also get the records pried loose in the process.

• Sue the agency.

Stay up to date with caselaw

Majority opinion in Lake v. City of Phoenix (2009): “Arizona law provides that ‘[p]ublic records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.’ Ariz. Rev. Stat. § 39-121 (2001). The City of Phoenix denied a public records request for metadata in the electronic version of a public record. We today hold that if a public entity maintains a public record in an electronic format, then the electronic version, including any embedded metadata, is subject to disclosure under our public records laws.”

This means Arizona FOI requests can get all sorts of data!

Usual data excuses -- state or federal

• “We can’t create a record for you.” This usually stems from literal reliance on statute. It really means something that stands to reason: They can’t create something that doesn’t exist. But asking for a column to be formatted differently — or encrypted to protect privacy — is different.

• “It will cost you $28,298,109.” This common tactic usually conflates the law on paper copying fees, such as $0.25 per page. Calmly explain that electronic records don’t endure the same kinds of reproduction charges as paper records, unless they’re using a 1972 mainframe. (That alone might be a story.)

• “It’s prohibited/private/super-duper secret.” Use the law to your advantage. After all, they’re using it keep you from the records. Many states have specific statutes or court-derived exemptions under which records can’t be released. But exempt records often must be redacted and the remainder of the documents or records disclosed.

General tips for getting data• Work with IT folks. Yes, you may have to go through the front office

or the FOI officer at first to get the records. But getting access to the system administrator will pay dividends. They’ll be resistant at first, but once you build a relationship with them, getting records should be a breeze. Also helps when the PR folks think you’re speaking a foreign language (say, SQL).

• Source up. FOI requests are just one way to get data and documents. If you cover an agency, make friends with people who have access to data. They, at the minimum, could provide you with clues about where the data are stored.

• Be persistent. This goes for reporting in general, as we all know that “no” is only a beginning. This also applies to filing records requests regularly: The more you engage with an agency on public-records requests, the better.

• Write about denials.

Data formats you may encounter• Plain-text, ASCII-delimited files• Comma-separated files• Tab-delimited files• pipe “|” delimited files• Spreadsheets (Excel, OpenOffice)• Open Database Formats (SQL Dump File, SQLite)• Web pages: XML/HTML• Proprietary data formats

(.mdb, .dbf, .spo, .spss, .ssd, etc.)• PDF files• Paper

Types of databases/docs to seek

Aim for digital records if you can!

Problems with paper documents

How did it turn out?

512-4637525 Number Destination Duru Amt 'I`cIcph0nc: 512-463-7525 GOVERNOR LINE ATT I [18:51:110 ISI TX 1.2 $[1116 I (19:55:110 TX [1.6 $[1113 I IIASKELL. TX $[1115 I I BROWNSVILLIFZ. TX [1.6 $[1113 I lf[1I[!I16 :22;[1[1 CHRIS. TX I.1 $[1115 I I l:23:[1[1 lh! (ZORPUS CHRIS. TX [1.7 $[1113 7 HOUSTON. TX 711 $[1.34 I |f[I1Il11h HARLINGEN. TX $[1114

GOVERNMENT TRANSPARENCY:

GETTING PAST "NO" WHEN GOVERNMENT PUSHES BACK

2013 IRE National Conferenceby Angela Galloway

Davis Wright Tremaine LLP

Basic Concepts

FOIA: All records of the agencies of the federal government must be accessible to the public, unless specifically exempt. Nine categorical exemptions under FOIA law

Generally, the federal statutory exemptions permit an agency to withhold access to agency records; they do not require an agency to withhold. Still, in practice …

Basic Concepts: State

State public records acts: Operate similarly in that they presume disclosure

and specify exemptions. But there are major differences among state statutes and between them and FOIA. Best advice: know your state.

Sometimes provide better enforcement (e.g., penalties in some states)

What we will cover

1. Starting on the Right Foot: How to establish a strong position in case government resists

2. Dealing with the Pushback: 1. Negotiate

2. Administrative appeal

3. OGIS

4. Court

3. Get Help: Legal resources

The Right FootBolstering your legal rights from the first step.

The Right Foot:

Choosing the Best Agency:State or federal?

For federal info, check the US Government Manual (http://www.gpoaccess.gov/gmanual/index.html), which describes agency functions).

RCFP Open Govt Guide (http://www.rcfp.org/open-government-guide)

Were the documents shared with a second agency?

The Right Foot: RCFP guidance on state laws

The Right Foot: Choosing the Agency cont.

Once you select a federal agency, check its online resources & FOIA policies. The policies usually identify the specific employee

responsible for processing FOIA requests.

Know the record-retention policy (for timing and global picture of what’s retained). Both the underlying law and the agency’s policy

The Right Foot: Formal or Informal Request

Benefits of informal approach:Strategic: Cooperation can save time/energy.Professional: Cooperation can build/solidify relationships with sources. (Make request part of your routine.)Legal: Should you ultimately sue, your cooperation can be relevant & helpful evidence.

But, note, there are advantages to formality…

The Right Foot: Your Request

Format:It’s usually more prudent to submit in writing, even when oral requests are allowed

Some agencies require requests be in writing• Only a writing establishes your legal rights, agencies’

legal duties• Writing is helpful for tracking & evidence

Submit by email or registered mailGet tracking number

The Right Foot: Your Request

Content:Neutral Tone:

Formal or Informal – or hybrid (be consistent on beat)

Scope: The more precise your request, the likelier success.

Still, broader requests leave room for negotiation.

Consult record-retention schedules for sense of what’s available.For databases, know the record layout, etc.

The Right Foot: Your letter

Include “reasonable” description of records Address fees Make clear that you expect a response within the

statutory time limits Remind the agency that the FOIA requires the

release of all reasonably segregable portions which are not themselves exempt

Consider noting that you are aware of your administrative appeal rights

The Right Foot: Reasonable Description of Records Sought

A “reasonable description” is one that “enable[s] a professional employee of the agency who [is] familiar with the subject area of the request to locate the record with a reasonable amount of effort.” H.R. Rep. No. 93-876 (1974) at 6.

Does this request contain a “reasonable description?”

All correspondence, documents, memoranda, tape recordings, notes, and any other material pertaining to the atrocities committed against plaintiffs, including, but not limited to, the files of various government offices.

No.

See Mason v. Callaway, 554 F.2d 129 (4th Cir. 1977) (broad, sweeping requests lacking specificity are not permissible).

What about this one?

A request to the IRS for: 1) all files indexed and maintained under my name or social security number; and 2) all documents containing my name.

No.

See Keese v. U.S., 632 F. Supp. 85, 91 (S.D. Tex. 1985) (“[r]equests for all documents containing a requester's name are not reasonably specific as required by the FOIA “).

Let’s fix the Mason request

Original: “All correspondence, documents, memoranda, tape recordings, notes, and any other material pertaining to the atrocities committed against plaintiffs, including, but not limited to, the files of various government offices.

The Right Foot: Expedited?

• FOIA requires expedited processing if requester shows “compelling need.”• Typically granted if health/safety at issue, or if

requester is journalist with urgency to inform the public about an actual or alleged governmental activity.*

• Agency must grant or deny request for expedited processing w/in 10 days.

• If an agency grants expedited processing, it will take the request out of order.

The Right Foot: Expedited? cont.

Content of Request:Describe the circumstances you feel warrant expedited processing;“Certify” to the agency that the reasons you give are true (the statute allows agencies to require certification).

Notes re. fees

Media (and other requestors seeking records for non-commercial use) are exempt from FOIA search & review fees

Request itemized breakdown of estimate Consider fee waiver request On-time-or-on-us: fed government cannot

charge for duplication if documents are tardy

To request fee waiver:

Agencies have discretion to grant full or partial waivers.

Agencies are more likely to waive fees if they determine that release of the records would benefit the general public.

Tracking

Keep careful track of your request in the ordinary course of business Consider a spreadsheet

Track: When requested What requested Of whom requested When response due All communications (notes of calls)

Resisting the PushbackWhat do when agencies resist

Typical Issues

Partial or full denial of request; Study the exemption cited!

Inadequate search; Untimely response; Excessive fees; Denial of a fee waiver request; Denial of a request for expedited processing.

Typical Issues, cont.: Untimely

Untimely Fed agencies routinely violate 20-day deadline. Note: An agency can take an additional 10 working

days to make its determination under “unusual circumstances.”

Clarification exemption: Agency may stop the clock one time.

Note: If an agency blows deadline, can go straight to court.

Pushback Step 1: Informal

Negotiate In writing is prudent (email works). But consider

calling. (Take notes.) Can be helpful whether it’s productive. Mind your relationships.

Write a story (re. public’s right to know).

Pushback Step 2: Administrative Appeal

What can you appeal?Denial (full or in part);Adequacy of search;Failure to issue a timely response;Excessive fees;Denial of a fee waiver; and/orDenial of expedited processing.

Appeals

Appeals are made to the head of the agency involved (e.g., the attorney general or the secretary of defense).

If possible, file your appeal within 30 days after the denial, even though agencies generally permit a longer time to appeal.

Content: What should be in my appeal letter?

Identify yourself; Identify the specific FOIA request made; Identify the specific FOIA action you’re appealing; Note you expect a reply w/in 20 business days of

receipt, as required by law; Request a list of withheld documents covered by the

request, and which exemptions are claimed; Offer to discuss (ideally via email) your request and

appeal with the appropriate agency representative.

Appeal, cont.

Appeal officer may:Grant (all or part);Deny (all or part); orExtend time limit by up to 10 days if

Voluminous records must be searched, Records must be retrieved from various offices, or Several agencies must be consulted.

Pushback Step 3: OGIS

Pushback Step 4: Lawsuit

When can you sue over FOIA*?If no response to request w/in 20 days;If appeal denied; orIf appeal not responded to w/in 20 days.

* Often, when you’re allowed to sue and when it makes sense to sue are two different questions.

Pushback Step 4: Lawsuit

Offer to settle first? FOIA litigation can be slow & clumsy.

Beware: bad facts lead to bad law. Filing a complaint in federal district court brings

financial expenses, but sometimes it’s a relatively inexpensive and simple step.

If you can demonstrate need for prompt consideration, you can ask the court to expedite. But that’s often a tough sell.

Also, consider filing a Motion for Vaughn Index:

Motion: formal request the court order the agency to provide an index describing the documents it withheld & the justification it claims for each piece of info. RCFP sample:

Plaintiff (your name) moves this Court for an order requiring Defendant (name of agency) to provide within 30 days after service of the Complaint in this action, an itemized, indexed inventory of every agency record or portion thereof responsive to Plaintiff’s request which Defendant asserts to be exempt from disclosure, accompanied by a detailed justification statement covering each refusal to release records or portions thereof in accordance with the indexing requirements of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1974).

Lawsuit

• If you win, a judge will order the agency to release the records and might award you attorney’s fees and costs

• Some state laws permit penalties

Get Help

Resources for Journalists

Resources

Journalism Resources, e.g.:•Reporters Committee for Freedom of the Press•SPJ (also, state chapters’ resources)•IRE tip sheets•NFOIC

Others•Governmentattic.org•Data.gov

See Our Tipsheets

Questions?

Angela Galloway

Davis Wright Tremaine LLP

1201 Third Ave, Suite 2200

Seattle, WA 98029

(206) 757-8274

angelagalloway@dwt.com