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‘You got to push back’: Navigating FOIA barriers
By Le Nguyen, NPCJI press freedom fellow
Accessing public records is an essential part of investigative journalism, but navigating the Freedom of Information Act in an increasingly restrictive environment remains challenging.
Delays, a growing use of exemptions, and excessive redactions are some of the tactics agencies deploy to get around the release of public information.
“Fifteen years ago, when you asked for a record at the federal level, you got it 38% of the time, based on the government’s own data,” said David Cuillier, director of the Joseph L. Brechner Freedom of Information Project and co-director of the Brechner Center for Advancement of the First Amendment. “Now, as of last year, it’s 10% of the time.”
The Institute consulted with FOIA experts David Cuillier and Eileen O’Reilly, former National Press Club president and Head of Standards & AI Practices at Axios for advice to navigate FOIA barriers.
Do your research
Both experts advise requesters doing your homework before filing a request to increase your chance of getting what you you’re looking for.
“You don’t want to waste people’s time, or your time, with a fishing expedition,” cautioned O’Reilly.
A little research can be helpful. Journalists should know:
- Any formal names for the records: form numbers, acronyms used by employees, or other details can help narrow a request. It can be helpful to ask your sources how they refer to the documents or information in question.
- Which agency is most likely to have those records. information flows up and downstream; notice which agencies report to whom and seek similar records in different places.
- How records might be stored: digital or physical files, for example, take different periods of time to review and return on a request. It’s also helpful to indicate which file format you need the records in, so that you can ensure you can access them once you receive them.
Cuillier stressed that journalists must make every request “as specific as possible.”
“If it’s too broad or vague, they can ignore you or deny your request,” he said. (Click here for an example of a good request.)
O’Reilly recommended checking National Freedom of Information Coalition for related FOIA requests to see if the records sought had already released.
Following up on a request
Asking for releases on a rolling basis can get some portions of records released quicker, so journalists can start writing their stories sooner, explained O’Reilly. The general deadline for federal agencies to respond to open record requests is 20 business days, with some exemptions.
O’Reilly recommends creating a spreadsheet that includes tracking numbers, submission and response dates. The spreadsheet can also be used to note what was missing from a FOIA request, what was redacted, and what exemptions were cited, as well as who were the custodians responsible for holding the records.
Journalists should begin asking for updates as soon as the deadline has passed.
“You might ask for a status update using your tracking number, as well as estimated completion date. You might want to see if narrowing your request could speed up production,” O’Reilly said.
An administrative appeal, which can be filed after a 20-day deadline is missed, can “cut the records loose about a third of the time,” Cuillier said. (He recommended FOIA Wiki for templates on appeal letters.)
Pushing back on redactions
If journalists are not happy with redactions made to a document, a follow-up request may be needed.
Cuillier noted that agencies are required by law to provide the exact exemption a redaction is made under in a note. “Appealing forces them to justify a little better,” he said.
O’Reilly recommends the following language: “Please identify the specific exemption applied to each redaction, explain the reasonably foreseeable harm from disclosure, and release all reasonably segregable nonexempt portions.”
Even redacted files may have interesting data visible or in the metadata, O’Reilly said. Information like dates, senders and recipients of an email, file names, subject lines, attachment names and more that can lead to new avenues of investigation.
She encouraged journalists to cross-reference the information they receive from FOIA with other public records, including press releases, meeting minutes, budgets, contracts, and inspector general reports, to see what new stories might be found. (Click here to learn more about FOIA exemptions.)
Litigation and resources
When a journalist can’t access information they believe is in the public’s interest and aren’t given satisfactory explanations as to why, they can try to levy the court system, O’Reilly said.
However, litigation can be expensive, so is best done in collaboration with other news outlets or organizations like the Reporters Committee for Freedom of the Press or the American Civil Liberties Union.
“Interpretations of FOIA law and what can or cannot be exempted do change over the years,” O’Reilly said.
If open records requesters run into legal problems and denials, they can seek help from the Office of Government Information Services under the National Archives and Records Administration, which can be mediated by the ombudsman and Reporters Committee for Freedom of the Press, Cuillier said.
Whether or not a legal avenue is taken, it is important to apply sustained pressure and be willing to challenge exemptions, Cuillier said.
“You got to push back,” he stressed. “You got to make them justify exemptions and call them on the carpet when they’re being too secretive.”
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