Any advice for FOIAing documents that are mentioned in leaks?
Asked by Michael Morisy on September 5, 2013.
1 answer from Michael Morisy.
Paraphrased from a reader:
I’m interested in FOIA’ing documents mentioned in some of the recent NSA leaks since it doesn’t look like they’re getting much attention anywhere else.
Does request wording matter much in whether you’ll be successful? i.e., does more legalese equal more or less success? Also, will highlighting specific parts of that document that might be sensitive hurt your chances of getting it?
At a very basic level, I always encourage people to keep in mind that a FOIA request is, if lucky, going to go through a number of different people in different departments as it gets processed. Some will have a lot of domain expertise, some may hardly know how to use a computer, and rather than being a unified conspiracy, a lot of times it’s internal dysfunction or miscommunication that slows things down. Think Office Space when you think about filing.
So treat your letter like a guide when possible: Broad instructions for a person to make sure it gets routed to the right department, specific details so that a person in the department knows what you’re talking about, and just enough legalese to be taken seriously but not to drown out what you’re actually looking for (FOIA officers have told me they really struggle deciphering a lot of multi-page requests). Keep it clear, and if you’re helpful to the FOIA officer, typically they’ll try and be helpful back.
So in that sense — keeping it clear, specific, and including details about how to find it — language is helpful. Typically including “magic phrases” isn’t broadly useful unless a particular agency has shown itself to be stubborn on a particular issue in the past.
For national security-related information, I’ve also found the following to be helpful:
- Including citations to when public officials have mentioned a particular program or document. This helps get around GLOMAR responses that have become a default response from the CIA and NSA, and it’s a great indication that something has been formally declassified.
- Asking for the request to be processed as both a FOIA request and a Mandatory Declassification Review. MDR’s go through a separate process to see what can and should be declassified, and a document can be MDR’d once every three years for a formal review. Here’s an example MDR, though it was ultimately unsuccessful it was processed and reviewed. You can typically just take an MDR alongside a FOIA in the same request.
- Highlighting sensitive information shouldn’t hurt a request, but the reality is sometimes it does draw specific scrutiny. If you can reasonably describe the document in other ways that it’s easy enough to find, it might not hurt to leave out anything you might think would trigger extra review. The Department of Homeland Security flags a number of requests, for example, it thinks might trigger media interest. I filed this FBI request without mentioning that the files focus on Fidel Castro because mentioning names of living persons often triggers a Privacy Act denial, and I’m hoping to skirt that.