Requester’s Voice: Kel McClanahan

McClanahan’s legal pursuits involve unique FOIA work, perspective

Written by George LeVines
Edited by Beryl Lipton

Kel McClanahan is the Executive Director of National Security Counselors. His work in national security and information and privacy law often lands him in the world of public records. In this week’s Requester’s Voice MuckRock caught up with McClanahan to discuss, strategy, the FOIA officer’s disposition, and paying it forward.

What was your first request, and how did it go?

In graduate school (before I decided to go to law school), I was writing a paper on comparing historical intelligence communities (eventually adapted into this), and I discovered citations in a reference book to several articles in the CIA’s in-house journal Studies in Intelligence, so I requested them from the CIA.

I got most of them, and interestingly enough ran into one of the more unusual FOIA responses in my career doing so, in which the CIA sent me every other page of a particular article. Later on, after I started doing FOIA as part of my work (during and after law school) I revisited this article and spent the better part of a year getting to the bottom of what had happened.

Why did you try using public records in the first place, and what’s encouraged you to keep at it?

As stated above, I originally used FOIA because it was the only way to get records from an agency that I needed. Later on, after I met my mentor Mark Zaid and learned what a wealth of information could be had using FOIA, I dove deep into the agencies’ filing cabinets, researching anything that seemed interesting. Even though the agencies I normally deal with aren’t generally known for their FOIA-friendliness, I’ve learned that often I can learn almost as much from what they don’t release (and why they fight it) as I can from their actual releases. Plus, if I sue them, I can often get even more.

Where does FOIA shine as a transparency tool, and where does it fall short?

FOIA in its purest form is like a school library card. Remember when you could go to your school library and tell the librarian “I’d like something to read about dinosaurs,” and she’d give you a book on dinosaurs? Then you’d read it, and you’d learn something. When you’re working with a conscientious and cooperative agency (they are more common than you think), it’s like that.

FOIA falls short when you run into the agencies which actively fight against disclosing information. While it’s true that you can litigate against these agencies (and I’d consider that provision a “shine”), in many cases it’s like fighting an uphill battle with your hands tied behind your back, not to mention very expensive.

The case law has developed in a very anti-requester direction, where you can only refute an agency declaration with proof (that you don’t have because the agency has all the information), and many judges are loath to believe that a federal government official would ever mislead them. More importantly, though, you shouldn’t have to litigate to get a fighting chance at the information you want. FOIA works when the agency FOIA officer believes that information should be released unless it fits within nine narrowly construed exemptions. FOIA doesn’t work when the agency FOIA officer starts the process with the idea that information should be protected at all costs.

Agencies often have posters saying things like “Information security is everyone’s responsibility,” but I look forward to the day when those posters are side by side with others saying “Transparency is everyone’s responsibility.” That’ll be the day that FOIA has truly become part of agency culture. That’ll also be the day that FOIA offices are adequately staffed so that they can respond in something approximating a timely fashion (another big shortcoming).

How often does FOIA come into play in your work and in what contexts?

FOIA and the Privacy Act are an integral part of my work. Not even counting the requests that I make on topics that interest me or requesters I represent in the administrative process and litigation, I use these two statutes regularly for other things. If I am representing a whistleblower, I request records about him and/or the subject of the whistleblowing. If I am representing an employee in a security investigation, I request records about the investigation.

If I am publicly advocating for a law or policy change, I request records about the matter in question so that I know for sure where the government stands on it (as well as whether or not I am actually on the right side of the issue). I even use FOIA requests in support of FOIA litigation, to make sure that the agency’s records about how it processed a request match up with what it tells the court. FOIA should be in the toolbox of any lawyer who deals with the government.

Any particular areas that you’ve found your FOIA work increasing in?

If you’re asking if there are any subject areas that I find myself requesting information about– not to any significant degree. My interests are pretty broad, and I often request records about whatever happens to be in the news if it interests me and would further National Security Counselors’ mission to educate the public about national security matters.

However, if you’re asking if there are any types of FOIA issues that I’m encountering more than I used to, I’d have to say fee-related arguments. In the last few years I’ve seen a marked uptick in the number of agency decisions denying preferential fee categories (like news media, academics, etc.) or fee waivers or finding other ways to “price requesters out” of pursuing a request (like giving unreasonably high cost estimates early on in the process and then refusing to process the request unless requesters promise to pay). This has always been part of certain agencies’ toolboxes, but they seem to be using it more and more to avoid having to process the requests.

How many FOIA requests do you file?

Easily 20-25 a month, sometimes much much more.

What’s your favorite request you ever filed? How did it turn out?

I’m going to give two answers here, one for the favorite request topic that I filed and the other for the favorite request response I ever received.

I think my favorite request topic was one for the Tables of Contents of every issue of Studies in Intelligence. This journal is a tremendous resource for students of intelligence, but it’s often not used because people simply don’t know what articles are there. I decided to do “grad school me” a favor and publish in one place a comprehensive list of all the articles written to date so that future students and researchers could review it and request the articles that interested them. It would be a much smaller burden on the agency than requesting “all Studies in Intelligence articles” and would in fact likely result in the release of many article titles which could be declassified even if the full articles remained classified, so at least researchers would know they were there and could fight for them if they chose.

All things considered, it turned out pretty well. I got most of them and posted them in our website’s Document Vault (although doing so required litigation), and this project actually yielded a significant amount of information about how the CIA processed FOIA requests. In particular, intelligence scholar Jeff Richelson (whom you should interview sometime) wrote a very interesting paper describing how litigation appeared to affect CIA’s FOIA processes, using this request as a case study. Unbeknownst to me, Jeff had requested several of the Tables of Contents at around the same time as I did, but while I filed suit before the agency released records, he did not. Comparing the release voluntarily made to me (i.e., before any court battles over withholdings) with the releases made to him (only weeks or months apart), he found that approximately 130 titles were unredacted in the release to me that were redacted in the releases to him. Many of us in the FOIA community had often suspected that agencies would release records in FOIA litigation that they would withhold absent litigation, but this was the first time that we had any actual significant proof.

As for the favorite request response, that actually happened this week. A client of mine (prior to hiring me) had filed a FOIA/PA request for records about himself with an agency who shall remain nameless. There was a significant problem with the search performed by the agency. Then I filed another request on his behalf to make sure we got all the responsive records, and a FOIA officer emailed the office holding the records to task them with a new search. Except this tasking order included the line, “The subject has retained a lawyer with a high success rate against the government in FOIA cases.” Because that’s supposed to make a difference in how they do a search, I guess. For good or ill, that made me pretty happy. (To clarify, I know what the tasking order said because I actually filed a third FOIA/PA request for records mentioning my client, and the tasking order came back as a responsive record. So, credit where credit is due, props to the agency for not redacting that rather embarrassing line before releasing it to me.)

What advice do you have for a first time FOIA filer? What do you wish the filers you worked with did differently?

a) Choose your words carefully. If you’re requesting records from an agency not known for a friendly attitude to requesters, first give your request to your trickiest, nitpickiest, most OCD Grammar-Nazi friend (lawyers or law students are great for this) and say “Tell me all the ways you could find to interpret this as super-narrowly as possible.” Because that’s what the FOIA analysts are going to do at those agencies. But don’t request too broad a set of records, either; many will often entail an unreasonable amount of work on the agency’s part and aren’t really fair to them, not to mention causing significant delays.

b) Negotiate. If a FOIA officer calls you and wants to narrow the scope of your request, she’s probably not trying to trick you (although, to be fair, many do in the more recalcitrant agencies). I adopt a “trust but verify” approach when dealing with agency attempts to negotiate the scope of the request. I take them at face value and negotiate in good faith up until I begin to reasonably suspect that they are trying to hide the ball or play semantic games. More often than not, the FOIA officer is actually just trying to reduce her workload and ensure that you get your records faster. And many times she will be conducive to the idea, “Well, how about you tentatively limit it to XYZ records and process those, and if after you make your release I think it should be broader, then we’ll expand the scope.” In fact, her response to that offer will often tell you a great deal about her good faith. If she insists on a hardline position like, “Sorry, you’ll have to then file a new request and go to the back of the queue if you’re not satisfied with the scope,” she probably doesn’t have your best interests in mind.

c) Do your research. Figure out as much as you can about who would have responsive records in the agency and include that in the request. Sometimes this won’t be possible to any degree of particularity (such as with agencies that hide their organizational structure), but try to make it a little easier on the FOIA officer to figure out who she should task to search for records. Plus, it’s not just for her; she may not think to task an office that you would want tasked if you were more familiar with the agency structure.

d) Seek help intelligently. There are two avenues for seeking assistance when you’re having problems with a FOIA office. First, you can talk to the FOIA Public Liaison; every office has one. Second, you can talk to the Office of Government Information Services (“OGIS”). Both of these avenues work well for relatively simple matters, such as a breakdown in communication or a simple fee issue, and you should try them. However, if your problem with the FOIA office is a major one, like a policy you object to or a withholding position they don’t want to budge from, involving the Public Liaison or OGIS is probably not going to accomplish much. That’s why I say “seek help intelligently.” Don’t bother OGIS with something they won’t be able to change. They’ll make a good effort to resolve it, but in the end it only wastes everyone’s time and leaves a sour taste in everyone’s mouth; yours because you didn’t get relief, theirs because they weren’t able to resolve the problem, and the agency’s because, well, they weren’t going to change their minds anyway.

e) Be patient. FOIA says you’re entitled to a response in 20 business days. That number is meaningless for the most part, especially when dealing with larger agencies. These agencies have huge backlogs of FOIA requests and are perpetually understaffed. While it might be unreasonable if an agency hasn’t responded after a year, several months is to be expected in many agencies, and it doesn’t accomplish anything to badger them about how much they are violating FOIA by not giving you records within 20 days.

Do you think the media spends enough time filing its own requests and sifting through documents?

No, but I can’t say I really fault them. FOIA moves so slowly that it is often true that by the time you get the records, nobody cares about the story. But if you’re working on a long-term project where a few months won’t matter, you’re missing out if you don’t at least give it a shot.

Where did you learn about the FOIA process?

When I filed my first request to the CIA in grad school, I knew that you wrote a letter to the agency FOIA office and said, “This is a FOIA request for the following documents.”

It wasn’t until I started working with Mark Zaid that I learned the real ins and outs of the process, and most of that I learned on my own after Mark gave me a book and a stack of old requests and threw me in the deep end. And in retrospect, I really wouldn’t have it any other way.

FOIA is more art than science; it can’t really be taught except at pretty basic levels. You have to learn by doing and by looking at others’ efforts and figuring out on your own why Argument A worked and Argument B didn’t.

Any tips or tricks you keep in mind as filers hunt for interesting documents?

Beyond what I’ve said above, go look for records on your own before filing requests. Requesting something that is publicly available (either because it’s been published by the agency or because they released it to someone else who published it) is a rookie mistake, and it clogs the FOIA process. With the advent of Scribd, DocStoc, and the like, it’s so easy to publish records you got through a FOIA request on the web that it’s really not excusable to not do a Google search before filing a request. And pay it forward. When you get records, stick ‘em somewhere where others can find them.

Image via Wikimedia Commons