How to overcome your fear of FOIAs
For many journalists, FOIA is a scary four-letter acronym, sometimes stifling investigations before they even begin. This guide aims to demystify Freedom of Information Act processes, giving you the tools and confidence to ask for the information you need to write your next investigative story.
Why FOIA requests are so helpful
FOIA is both a federal and state-based law granting individuals and organizations the right to access most governmental agency records. As such, it's a critical tool that helps journalists in their reporting and writing. Public-records requests are essential to supporting the journalistic values of holding the government accountable and ensuring openness.
Via FOIA, the government provides the information you need; however, the research and analysis associated with the information obtained is left up to you.
What information is available via FOIA
FOIA promises public access to government public meetings and records, which generally includes all documents, files and records made or received in connection with the transaction of official business.
How to file a FOIA request
Some information is available on government agency websites without the need for a request. Before you file a request, it's a good idea to check online.
1. Identify the source of the information
You need to first identify the office or agency that holds the information you seek. If you aren't sure which office has that information, do some preliminary research or contact an agency’s public liaison (see the government's "Where to Make a FOIA Request" guide) to see if they can help.
2. Write a letter describing the information you would like the government to provide you.
In a FOIA request, which is usually written, you will need to describe -- with as much detail as possible -- the government records you want and the format in which you want to receive the information. You don't need to reveal why you need the records.
The Reporters Committee for Freedom of the Press offers a FOIA Letter Generator that guides you through crafting a request to both federal and state governments. While each state is different, you may need to supplement your basic letters with additional information if you are contacting local officials. The RCFP’s Open Government guide also provides detailed information for connecting with a variety of agencies.
Include your contact information and specify whether you prefer the agency to mail you the records or transfer them by email. In some cases you'll need to go to the physical location of the office to review and copy the records.
4. Arrange to pay any necessary fees.
Most agencies require the requester to pay a nominal fee to cover administrative costs. Typically, there's no charge for small amounts of search time or for only a few copies, but again, this is different depending which organization you're requesting records from.
When writing your letter, you can specifically state the amount of fees you're willing to pay. You may also get the fees waived if you can show your request is in the public interest, rather than primarily to serve a commercial or personal interest.
4. File your request.
After you've filed your request and paid any fees, expect to hear from the agency within 20 business days. In its response, the agency will notify you that your request was fully granted, partially granted, or denied. A fully granted response will include all requested documents -- success! The agency may partially grant your response, providing some of the information you requested and indicating if any information has been withheld or redacted because of exemptions or exclusions. If the agency denies your request, it must explain why.
The Florida First Amendment Foundation, located in a state known for Sunshine Laws that allow a great deal of public access to most government records, shares Ten Practical Tips for requesting public records, including making practice requests, agreeing in advance to pay any nominal fees required, and asking for written explanations of any denials. The Berkman Center's Digital Media Law Project also offers practical tips for getting government records.
Submitting a FOIA request is deceptively simple. It’s what you do once you have the information that's the more important part.
Challenge: What information isn't available through a FOIA request?
Generally, records are exempt from public-records requests if they contain personal information such as Social Security numbers, information about family members of specified officials, and information concerning ongoing legal proceedings.
A record is public unless it falls into one of the nine exemptions protected from public disclosure or one of the three special law-enforcement record exclusions.
The nine exemptions include information that:
1. Is properly classified under an executive order to protect national security.
2. Is related solely to the internal personnel rules and practices of an agency.
3. Is prohibited from disclosure by another federal law (see the Department of Justice FOIA Resources page)
4. Concerns business trade secrets or other confidential commercial or financial information.
5. Concerns communications within or between agencies that are protected by legal privileges, such as attorney-client privileges, protected internal processes related to the executive branch, or presidential communications.
6. If disclosed, would invade another individual's personal privacy.
7. Is compiled for law-enforcement purposes and could possibly cause specific harms, such as interfering with enforcement proceedings, depriving someone of a right to a fair trial or an impartial adjudication, constituting an unwarranted invasion of personal privacy, disclosing the identity of a confidential source, revealing techniques and procedures for law-enforcement investigations or prosecutions, or endangering the life or physical safety of any individual.
8. Concerns the supervision of financial institutions.
9. Includes geological information about wells.
The three exclusions cover public records that:
1. Protect the existence of an ongoing criminal law-enforcement investigation when the subject is unaware of that investigation and disclosure could reasonably be expected to interfere with enforcement proceedings.
2. Protect the existence of informant records when the informant’s status hasn't been officially confirmed (limited to criminal law-enforcement agencies).
3. Protect the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified (limited to the Federal Bureau of Investigation).
Challenge: What happens if your request is denied?
Last year, the U.S. government said it received 651,254 public-records requests. It fulfilled 50.33 percent of those requests completely; partially fulfilled 43.06 percent, and denied 6.61 percent.
If your request is denied, the Berkman Center's Digital Media Law project explains many of the remedies available to you. The easiest path is to revise and resubmit your request to provide more detail, or specify the information you're requesting. You may also appeal the denial, request that classified information be declassified, or -- if all else fails -- file a lawsuit.
Challenge: How quickly will the agency process my request?
One common challenge for journalists is a delay in getting a response from an agency or in receiving the documents. FOIA instructs agencies to handle requests as quickly and efficiently as possible, usually within 20 business days. However, sometimes an agency may require an extension if the request is complex, or if it has a backlog of requests. The agency may also ask you to revise your request if the amount of information you're requesting is too broad.
In rare situations, the government may grant an expedited review of a request if the person requesting the records has clearly explained a compelling reason for the urgency. Specifically, the government may expedite your request if someone’s life, physical safety or due-process rights are in jeopardy.
Additional FOIA resources
Many organizations, including the government, have created guides for navigating FOIA:
- United States Office of Special Counsel's FOIA Handbook
- Reporter's Committee for Freedom of the Press Federal FOIA Appeals guide
- Berkman Center's Digital Media Law Project, Access to Government guide
- Muckrock is a tool intended to simplify the FOIA process by “wading through the muck so users don’t have to.” This website, which has both a free and paid version, walks people through the process of filing a public-records request, tracks the status of a request, and, if necessary, follows up with the request on the user's behalf.
How can you be most efficient in navigating the public-records process? Being diligent about following up helps. So does developing relationships with key people in the records or communications departments of government offices -- especially at the local level or with organizations you work with often. By contacting a specific person rather than a general department, you can more directly communicate what information you need, and they can more quickly connect you with this information.
Yes, these individuals are employed by the agency you're seeking information from. But they can sometimes help you cut through unnecessary bureaucracy, giving you more information and time for writing your story.
We talked more about FOIAs in a live chat with Tom Nash, news editor of MuckRock, a public records request service. You can replay the chat here:
While Ellyn Angelotti is an attorney, this article is for informational purposes only and is not to be considered legal advice.