Chapter 30. Freedom of Information Acts: Promises and Realities

Brant Houston

The U.S. Freedom of Information Act (FOIA) is fraught with paradoxes.

It’s good in theory, but difficult in practice. It has produced the disclosure of illuminating, shocking, and invaluable information, but requests under the act can entail months or years of waiting. And though writing a request letter for public records under the act is relatively simple to do, relatively few citizens do so.

In fact, after the act’s nearly half-century of existence, surveys have shown that corporations and paid researchers are among the heaviest users. In 2005, the Coalition of Journalists for Open Government said it analyzed 6,439 FOIA requests to 11 Cabinet-level departments and six large agencies. The report, which echoed previous surveys, said the following:

The review found that more than 60 percent of the requests came from commercial interests, with one-fourth of those filed by professional data brokers working on behalf of clients who wanted such information as the asbestos level on old Navy ships, cockpit recordings from crashed airliners and background data on prospective employees.

The second-largest group of requesters—categorized as “other” and consisting mostly of private citizens—comprised a third of the total. These were individuals from a wide swath of society: a movie producer doing research for The Road to Guantanamo, a divorcee searching for hidden assets and UFO enthusiasts seeking evidence of other worldly visitations.

There were also requests from a local police department mining for information on federal grants, a whistleblower trying to shore up a claim of government wrongdoing, historians digging into original source material, a cryptologist trying to recover a Navy intelligence report he had worked on years earlier, and a lawyer in the Texas Attorney General’s office trying to locate parents overdue on child support payments.

“Media” requests accounted for 6 percent of the total. Many reporters say it takes too long to get information through FOIA to make it a meaningful tool for newsgathering. It is used more frequently by journalists working on longer, investigative projects.

The Act and Amendments

The federal Freedom of Information Act was created in 1966. Thirty years later Congress added an amendment to include electronic records to make it clear that the medium did not matter: databases and other repositories of digital government information are just like paper records and also are public. In general, the 50 states have followed the federal government’s lead, enacting similar laws, including those concerning electronic records. Those laws are helpfully indexed at the Reporters Committee for Freedom of the Press website, among other websites.

The FOIA does not apply to the judicial or legislative branches, which have their own disclosure guidelines, or to parts of the president’s office.

The act was strengthened again in 2008, when then-President Bush signed a bill that bolstered the act by closing some loopholes, limiting fees, and demanding more accountability from federal agencies in how they handled requests. The bill, called The Open Government Act, created phone service for federal agencies to deal with FOIA problems and called for a chief FOI officer at agencies who would monitor compliance. The act also said each agency shall have a “FOIA Public Liaison, who shall assist in the resolution of any disputes between the requester and the agency.” And the act allowed the public and news media to keep better track of the status of their requests.

But the FOI laws still contain many exemptions. Other laws also have been passed concerning the privacy of health records, among them the Health Insurance Portability and Accountability Act of 1996 (HIPAA); and the Critical Infrastructure Information Act of 2002 allows government officials to close off for security reasons records which used to be public on potentially vulnerable facilities.

Nevertheless, every year organizations and individuals do succeed in obtaining or prying information from agencies—information that serves the public good or brings to light issues otherwise hidden. The National Security Archive, which specializes in using FOIA, notes 40 stories over a four-year period that could not have been done without the act (see http://www2.gwu.edu/~nsarchiv/nsa/foia/stories.htm), and journalism organizations such as Investigative Reporters and Editors and the Society of Professional Journalists recognize inspirational and effective use of the act for news stories.

Open to All

Any citizen, whether a U.S. resident or from another country, can request information under the act. All that is required is the ability to write a letter, which often can be faxed or emailed, to the government agency that has the records containing that information.

While filing a “FOIA” request may seem daunting at first, many organizations offer advice on how to do so and offer samples of FOIA letters.

For example, the Reporters Committee for Freedom of the Press has letter “generators” on its site that provide an electronic template for making requests (see http://www.rcfp.org/foialetter/index.php). The form includes the necessary important legal language, and you can fill in details about the agency and the documents you want.

The National Security Archive also offers a wealth of information on filing requests, and the National Freedom of Information Coalition has many helpful links at http://www.nfoic.org/states on filing both federal and state requests.

In addition, many organizations offer practical advice about the FOIA process—both its formal and its informal etiquette. The FOIA process has many twists and turns that occasionally can resemble the ordeal of buying a car.

Often, the first piece of advice experienced users of FOIA will give is surprising: don’t use FOIA. Instead, they suggest that you simply ask an agency for the records you want. There are many records, especially online, that agencies make available without requiring a FOIA request.

That is followed by the second piece of advice by experienced users: do a thorough search of an agency’s website and of the entire Web for the information before requesting the government records you want. The information may be sitting out in the open and ready for easy downloading. If it is not at the agency’s site, the information might have been released already and posted by a citizen, journalist, or blogger.

Research and Prepare

If a citizen is going to file a request under FOIA laws, he needs to do some thinking, research, and preparation beyond just seeing whether the records are already on the Web. It helps immensely to know what question is to be answered and what agency might have the records that will answer that question.

One way to think about who to ask is to match the topic with the agency. If the topic concerns the environment, you likely would contact the U.S. Environmental Protection Agency (EPA). If it concerns housing, you likely would contact the U.S. Department of Housing and Urban Development (HUD). Another way is to search the site of the Government Accountability Office for reports and audits on agencies. Frequently, the reports and audits cite agency records the GAO looked at during the audit.

Once the agency has been determined, obtain the blank forms that someone or some entity would have to fill out if it comes under an agency’s jurisdiction or does business with the agency. Those blank forms will show what records the agency collects and stores, and this will help a requester narrow the specifics of the request or go to another agency. (After all, if the agency doesn’t collect the information [even if it should], then it doesn’t have it.)

Once a requester has pinpointed the agency that has the records, it is important to obtain the name of the person who handles requests. Nearly every federal agency has a FOIA officer, and the federal agencies (and most state agencies) have become very adept at making sure every request ends up with the officer no matter who a requester starts with. It usually helps to place a phone call to that officer (the contact information is usually on a website) to let him know a request is coming and that you will follow up on the request.

Exemptions, Denials, and Delays

Before beginning the process, a requester should also be familiar with exemptions to the act so that he doesn’t waste his time or so that he knows how to recognize an incorrect denial to a request. Here are the exemptions straight from the law:

  1. Specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;
  2. Related solely to the internal personnel rules and practices of an agency;
  3. Specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
  4. Trade secrets and commercial or financial information obtained from a person and privileged or confidential;
  5. Inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;
  6. Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;
  7. Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, © could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual;
  8. Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or
  9. Geological and geophysical information and data, including maps, concerning wells.

It quickly becomes apparent that the potential is there for agencies to misinterpret or stretch the law to close off records, and some agencies do. For example, the U.S. Small Business Administration over the years has routinely cited the exemption on trade secrets and private commercial information as a reason not to disclose whether businesses that had received government-backed loans were delinquent in their loan payments. Yet a review of bankruptcy court records would show that some businesses were not only delinquent, but actually defunct, and had been out of business for some time.

Furthermore, security concerns increased exponentially after the 9/11 terrorist attacks on the World Trade Center in New York City. Not only did denials increase under that exemption, but databases and electronic information were erased from government websites.

Even before the Critical Infrastructure Information Act, then–Attorney General John Ashcroft issued the infamous “just say no” memorandum in 2001 to federal agencies in which agencies were told that when in doubt they should deny records to the public and that the Department of Justice would support them. That memo effectively turned FOIA’s presumption of openness upside down, and denials and delays in responses to requests soared.

Since then, Congress has pushed through a bill requiring agencies to reduce backlogs and the administration of President Obama has proclaimed its support of transparency, with Attorney General Eric Holder issuing a memo that reversed the Ashcroft memo. Nonetheless, many denials are still under the umbrella of the national security exemption.

There are always denials, too, based on weak excuses and/or just a plain reluctance by officials to release information. Although federal agencies have only 20 business days to respond to a request, that often is only the beginning to a back and forth that can go way beyond 20 days. Both federal and state agencies use those strategies, particularly when electronic information is requested.

Among the common denials are:

  • The agency can’t quickly find the records and it would be expensive to do an extensive search.
  • The electronic records are kept in proprietary software that can’t be disclosed or kept by a contractor working for the agency who can’t be reached quickly.
  • Parts of the records need to redacted (blacked out or deleted), and that will take too much time.
  • The request is too broad or they don’t understand the request.
  • They lack the staff to make copies of the records.

There are answers to all of these denials, but it can be time-consuming and agencies know that many requesters will give up or just have to wait—and that wait can be long.

The National Security Archive reported that in 2007 it had:

…filed FOIA requests with the 87 leading federal agencies and components for copies of their “ten oldest open or pending” FOIA requests. The Department of State, responding to an Archive “ten oldest” request for the first time, reported ten pending requests older than 15 years—the majority of the oldest requests in the entire federal government. Other agencies with the oldest requests include the Air Force, CIA, and two components of the Justice Department, the Criminal Division and the FBI.

One of the most serious challenges to getting records, however, is the cost of producing a copy of the records to give to the requester. Although costs are supposed to be fair and reasonable, the cost factor—or the pay-to-play situation—leaves citizens knocking at a closed door because they don’t have the money to pay the agency for the records. Often, requests for fee waivers under a provision of the law are denied. And indeed, some state legislatures have passed laws specifically making certain public records a revenue source by setting high copying fees.

FOIA Strategies That Work

After reviewing all the exemptions and common denials, a potential user of FOIA could be easily discouraged. But there are many counterstrategies that work to get government records and to keep government as open as possible, whether it’s federal, state, or local government.

One strategy is to remember that the complexity and fragmentation of government bureaucracy can play in a requester’s favor. The bureaucracy often does not communicate well within itself and has contradictory guidelines and policies that can result in records being released by one agency while another is still denying them.

For example, when seeking government records it can be helpful to think about how the records are shared. Records might be shared vertically—that is, a smaller agency in a state might have to share a set of records with a larger federal agency, or the federal agency might share information with the state agency.

If a requester files a state FOIA request for the records with a state agency and a federal FOIA request for the same records with a federal agency, one of the agencies might disclose the records while the other agency maintains the records are exempt from FOIA.

Or a requester can think “horizontally.” A set of records may be shared among agencies that are on the same level within a federal department, or state agencies also may share information laterally. Again, requests to multiple agencies or bureaus could result in the release of documents. This happened when Washington Post reporters were seeking records from the U.S. Food and Drug Administration (FDA) on a story on prescription drugs and FDA bureaus gave out the records while the home office did not.

There are many basic tips for making FOIA work. Many of them come from journalists and nonprofit organizations that serve the public.

Among the tips:

  • Check with an agency’s own FOIA logs to see whether the record has previously been released.
  • Make your request broad enough to ensure that you get the records you need, but be ready to narrow the request to get it expedited, to lower costs, or to just be reasonable.
  • If there are any charges, ask for a breakdown of costs and check to see whether they are allowable under the law. If they are allowable, ask to “inspect”—look at—the records first at no charge and then decide what you want copied.
  • Be prepared to negotiate over redacted information. Many times it is wise to ask for a bit more than you want. Somehow, agency officials seem satisfied if they can deny at least a part of the record.
  • If it is a database, ask for a record layout of the categories (columns) of information so that you know whether the agency is supposed to collect the information you are requesting. And make sure that the agency is filling in those columns of information and not leaving them blank before requesting the entire database.
  • Follow up on your request. Confirm that the request was received by the agency whether it’s snail-mailed, faxed, or emailed. If it is hand-delivered, get a receipt. Also, let the agency know that you are willing to answer its questions about your request and possibly narrow your search. Continue to follow up and let the agency know you are prepared to appeal denials.

And file your request early. There often is a direct correlation between successful requests and the time allowed by the requester for responses. FOIA requests generally fail on a quick turnaround deadline, and this is why citizens and journalists in a rush don’t think FOIA is useful and they stop filing requests.

There also can be a correlation between the cost of records and how much time a requester has. The longer you can wait for a request to be fulfilled, the greater the chance you can negotiate a lower price. In Connecticut, the cost of one database dropped from $3 million to $1 after lengthy negotiations. Of course, it took several years to get there, but the reporters were persistent.

Most of all, when it comes to FOIA persistence pays off.

Conclusion

Despite their limitations, FOIA laws, at both the federal and state levels, are crucial devices to keeping government open and accountable. But the public needs to use the laws frequently by making requests for important information. Such requests keep the laws up-to-date and relevant, help identify changes that need to be made, and keep officials respectful of the laws and the public.

Furthermore, a citizen can monitor the use of and changes in FOIA through numerous websites and can join some of those groups. Here is a partial list of the relevant websites:

These websites also offer guides and tips on how to most effectively request government records and how to appeal denials. In addition, the Department of Justice has a presence on the Internet to oversee FOIA, and most government agencies post their FOIA handbooks.

About the Author

Brant Houston is a professor and the Knight Chair in Investigative and Enterprise Reporting at the University of Illinois in Urbana-Champaign, where he teaches investigative and advanced reporting. He is the coauthor of The Investigative Reporter’s Handbook (Bedford/St. Martin’s) and author of Computer-Assisted Reporting: A Practical Guide (St. Martin’s Press). Houston is deeply involved in the creation of investigative journalism centers in the U.S. and internationally, and serves as chair of the steering committee of the new Investigative News Network. He is working on projects that demonstrate the use of the latest digital tools to collect and analyze information, including helping to coordinate a community news project on poverty issues, and developing a new website for investigative reporters world-wide. For more than a decade, Houston was executive director of Investigative Reporters and Editors (IRE), a nonprofit group of 4,000 members. He was also a professor of journalism at the University of Missouri, where IRE is located. For 17 years before joining IRE, Houston was a daily journalist. He was an award-winning investigative reporter at the Hartford Courant and at the Kansas City Star, where he was a member of the newsroom staff that won the Pulitzer Prize for its coverage of a hotel building collapse that killed 114 people.