Five lessons from "FOIA Strategies and Tactics"

Five lessons from “FOIA Strategies and Tactics”

The presentation brings up some often-overlooked elements of the whole process

Written by
Edited by Beryl Lipton

Last weekend, an anonymously-attributed presentation entitled “FOIA Strategies and Tactics” started making the rounds in the #OpenGov community, offering something for beginners, veterans, and fans of vintage Chuck Jones cartoons alike. While the whole thing’s worth a read, today we wanted to focus on the five points brought up in the presentation’s conclusion, as they address some often-overlooked elements of the whole FOIA process.

1. Always be filing

Something that we can’t stress enough here at MuckRock is that you should never just file a single request around a topic. Delays and disappointments are an inevitable part of FOIA, and, for beginners especially, a negative experience right out of the gate can sour them on the whole process. File a few requests at once, however (there’s a reason we sell requests in bundles), and odds are at least one of them is going to be successful.

The same logic applies to varying the level of agency you’re requesting from - with some federal agencies, such as the State Department, you can expect to wait at least a couple years before seeing records. Conversely, some local agencies have been known to respond with documents the same day the request was made. So if you’re constantly filing requests at the local, state, and federal level, you’re guaranteed to create a steady flow of releases - what the presentation calls a pipeline, and we here at MuckRock call “the zipper.”

(Okay, nobody but me calls it that but still.)

2. Pick up the phone

“Have you tried talking to the FOIA officer?” is the “Have you tried turning it off and on again?” of FOIA advice. You’re going to hear it a lot due to the simple fact that it works. FOIA officers are people too, and like most people, they’ve got a whole lot on their plate that’s not you and your request. Most are happy to hop on the phone for a five-minute chat to get a better sense of what you’re looking for, especially if it’ll save them five hours of search and processing time for something you’re not looking for.

The presentation has a whole section devoted to negotiation techniques for dealing with the very many friendly and helpful FOIA officers you’ll encounter out in the wild … and another section for countering excuses from the few less friendly, less helpful ones.

3. Wave that press pass

As we’ve written about before, one mistake novice requesters often make is to ask for a fee waiver for every request they make. While we certainly agree with you that the request you’re making is in the public interest and should released free of charge (expedited, even!), the government has a pretty stringent six-point set of criteria for what it deems waiver-worthy and, spoiler alert, not a lot of requests cut it. As an added insult to injury, the fee waiver has to be determined before the request can begin being processed, so not only did the government come to the official conclusion that nobody cares about what you’re doing, they also delayed any possible releases by a couple weeks. Ouch.

Here’s the good news: The criteria for who qualifies as a “news media requester” - the most forgiving of the fee categories, which waives processing fees so the requester is only on the hook for duplication fees after the first 100 pages - is as broad as the waiver’s criteria is narrow. According to Department of Justice FOIA guidance, you qualify if you’re “[a] person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience.” If you’re halfway through a listicle on FOIA tips, odds are pretty solid you meet that definition — just be sure to throw a line or two into the request stating your preferred category and maybe a link or two to some of your work, if you’re feeling fancy.

4. Appeal, appeal, appeal

Okay! So, it’s the moment you’ve been anticipating. After months of waiting, several phone calls, and way too many emails about getting locked out of your FOIAOnline account, you finally get a response to your request. You eagerly open it up only to find — gasp! They …

Alright, remain calm. If you clicked on any of the above links (or read the title of this section), you probably know what’s happening next. Take a deep breath … and appeal the hell out of that sucker.

It’s an open secret in FOIA that appeals are a baked-in part of the process — so much so, the Federal Bureau of Investigation’s FOIA manual explicitly states that it will only preform certain searches in response to an appeal. So if something seems even slightly off about an agency’s response, push back! To quote yet again the often-quoted Nate Jones of the National Security Archive:

“Always, always, always appeal. I think the government stats show that one-third of all requests that are appealed get more information. That means the government’s doing requests improperly one out of three times.”

Looking for some tips on how to appeal a certain type of rejection? Check out our guide to the nine federal exemptions here and our complete exemption database here.

5. Documents lie

The presentation ends on this point, and it’s a damn good one to keep in mind. Records released by the government are not necessarily government records. When we reported last year that the Washington State Fusion Center had accidentally released records on remote mind control technology, some people who believe in the government’s use of remote mind control technology saw that as evidence of the government’s use of remote mind control technology. As it later came out, that was not the case, and those records had originally been sent to the fusion center by, you guessed it, a person who believes in the government’s use of remote mind control technology.

So please … especially after all the hard work you put in to get these records released … just take a moment to “distrust but verify,” will you?

Or at the very least, just don’t tweet at us. Read the full presentation embedded below:

Image via Warner Bros.