Trial Magazine

The government works for the American people: That’s the main principle behind the federal Freedom of Information Act (FOIA).¹ Unfortunately, obtaining responses to FOIA requests can be a challenge, with government agencies taking months or even years to reply and then providing incomplete documents when they do.² FOIA can serve as a powerful tool for accountability and justice, but only if you craft requests carefully and assert your rights.

Do Your Research

Filing a FOIA request doesn’t come with the right to conduct Federal Rule of Civil Procedure 30(b)(6) depositions, so the burden is on you to research your issue and the relevant agency. You want to know as much as possible about an agency’s structure before crafting specific document requests.

Determine where to send your FOIA request, and narrow the destination as much as possible. Would an agency secretary’s office have the records, or would the documents live in a chief financial officer’s office? Target your request to specific departments and offices and, if possible, to certain individuals within an agency. Failing to do so could misroute your request from the start.

Once you know the recipient, drafting strong FOIA language is simple. There are no magic words: Tell the agency what you are looking for in plain English. But it pays to only ask for records to which you are entitled. Under the federal FOIA, there are nine exemptions that agencies can use to withhold information, the most common of which are to protect the disclosure of classified information, sensitive law enforcement information, privacy-protected information, and internal deliberations and privileged discussions.³ Although you can ask for exempted information, agencies don’t have to provide it, and you’ll likely waste time fighting over it. Agencies may use the volume of exempt information against you: If 99 out of the 100 pages you seek are privileged, the agency may insist on “processing” all of those exempt pages, potentially adding months to your request.

Craft your FOIA requests narrowly. The law may allow you to ask for all records on an issue, but in practice, you will have the most success if you consider search terms, custodians, and the tools that agencies use to conduct searches. Federal agencies generally cannot run searches across their ­workforces from a central location. It does not make sense to ask the EPA for all documents about Superfund sites, but if there is a specific site and a specific time period, the agency can route your request appropriately. You can help an agency’s FOIA officers (and yourself) by telling them where specifically to search, what key terms to use, and who to ask.

Be the Squeaky Wheel 

Submitting a FOIA request is just the first step. The FOIA backlog at federal agencies is real, and you’ll have to “prosecute” your request with regular follow ups, negotiation, clarification, and perseverance. Agencies often share information to facilitate negotiation.

For example, they may provide a list of potential custodians to search or tell you how many documents are returned using different keyword combinations or date ranges. You can use that information to pinpoint the smallest, most focused set of documents for the agency to review, drastically cutting down the response time.

Too many people engage with agency FOIA offices like they are customer support desks. Treat them like the opposing side in civil litigation—professionally but firmly—and remember that you’re asserting a right under the law that can be enforced. Just like the discovery negotiation process, you will want to document every commitment and deadline along the way and hold the agency to them. If the agency provides an estimated production date over the phone, send an email memorializing the conversation. If it tells you a potential custodian has no responsive documents, memorialize that too. You never know when you may see contrary evidence in a news article or other source. Never assume that an agency is tracking its commitments with the same level of precision as you are.

Even if bureaucratic processes don’t slow down your request, political obstruction might. The release of incriminating or embarrassing documents is a serious concern, and political officials could try to interfere. No matter the motivation behind delays, document your experience and deploy your facts in litigation if you go to court. Be vocal about what an agency owes you until you obtain your requested records.

Enforce Your Rights

Even the most dogged negotiations and precise language may not be enough. Under federal law, agencies have 20 business days to respond to FOIA requests.⁴ Once that deadline passes, you have the right to go to court. FOIA complaints can be straightforward because an agency’s failure to respond timely secures a requester’s standing to sue without first exhausting administrative remedies.⁵ Specify your request, the date on which it was filed, and your basis for alleging the agency has not met its statutory deadline.

Like civil discovery disputes, judges often are the key to enforcing FOIA requests. Typically, FOIA litigation involves setting a court-approved production schedule. As a result, a court can require an agency to stick to those deadlines. The production schedule may be maddeningly slow, but it is more than you’ll get on your own.

FOIA remains one of the public’s most precious tools for fighting for justice. But like any tool, it takes skill to wield FOIA to its greatest effect. My organization has found that targeted FOIA requests, supplemented by persistence and litigation, can yield serious results.

Austin Evers is the executive director of American Oversight in Washington, D.C. He can be reached at austin@americanoversight.org.

Notes

1. 5 U.S.C. §552 (2016). This article focuses on the federal FOIA.
2. This article is based on strategies used by American Oversight, which has filed more than 1,600 FOIA requests and more than 50 lawsuits since March 2017.
3. 5 U.S.C. §552(b). In addition to the exemptions described above, the government may withhold information related to trade secrets, certain banking regulatory documents, geological information relating to wells, and other specifically defined categories. For further information, including discussions of relevant case law, the U.S. Department of Justice’s FOIA guidelines are an excellent first resource. See U.S. Dep’t of Justice, Department of Justice Guide to the Freedom of Information Act, www.justice.gov/oip/doj-guide-freedom-information-act-0. 
4. 5 U.S.C. §552(a)(6)(A)(i). 
5. Citizens for Responsibility & Ethics in Washington v. Fed. Election Comm’n, 711 F.3d 180, 189 (D.C. Cir. 2013).