No Need to Fear FOIA

 

Six months ago, I submitted my first Freedom of Information Act request. I’d long grasped the importance and power of FOIA, but I found the opaqueness of the process intimidating. After getting a juicy tip from a source related to an investigative piece I was reporting, though, I knew it was time to buck up. My heart went aflutter as I clicked “submit.”

Later that day, my frustrations began. The FOIA officer at the agency I’d contacted replied that my request, in which I asked for emails sent between the agency’s employees and another organization related to a particular topic, was “overly broad.” I narrowed it to fewer agency employees. Still too broad, he replied. I asked: Could you give me a list of all the employees in one of the agency’s branches to help me with the narrowing? Nope, he said. One week after my initial request, he sent me a note saying that because I had “failed to reasonably describe, with specificity,” my request, it had been “administratively closed.”

I felt confused, frustrated, and angry (though amused by the term “administratively closed,” if I’m honest). Had my request really been too broad, or did the agency just not want to comply? How was I supposed to narrow it to specific employees if I couldn’t get the names of specific employees? More generally—and this was a question I’d had about FOIA for years—how do I figure out what to ask for, when government agencies aren’t exactly forthcoming about the records they keep?

As I dug more into the FOIA process, I discovered that many people share these questions upon first wading into the FOIA quagmire. But now, after talking with FOIA aficionados and a lawyer, I have a much better idea of how to navigate the FOIA system.

What to Ask For

FOIA was enacted in 1966 to increase government transparency and accountability, and it has been amended a few times over the years. The law gives the public the right to request information kept by the U.S. government, with a few important exceptions (for instance, you can’t get details that might jeopardize national security).

FOIA is a powerful tool for journalists who want to know what the U.S. government discusses, discovers, and dictates. It can also be used to eavesdrop on discussions between scientists and the government, as science journalist and New York University professor Charles Seife did while reporting his 2012 Scientific American story “How Drug Company Money Is Undermining Science.”

 

One of the big challenges with FOIA—what some call “the FOIA dilemma”—is that in order to get the information you want, you have to know that it exists, what agency has it, and, ideally, in what form it is kept.

 

Seife had learned, through required drug-company disclosures, that Eli Lilly had paid a substantial amount of money to two researchers who had also gotten National Institutes of Health (NIH) grants to study a compound marketed by Lilly. Seife suspected that these researchers didn’t declare their financial ties to Lilly on their grant applications, and he used FOIA to find out. “There was no way to get them to admit it, and I tried calling up the grant officers and they wouldn’t talk, so I FOIA’d, essentially, the part of the grant application where they declared whether or not there was a conflict of interest,” Seife explained to me over the phone. Seife’s instincts were spot on—the researchers had not disclosed their ties to Lilly, which was a breach of federal law.

One of the big challenges with FOIA—what some call “the FOIA dilemma”—is that in order to get the information you want, you have to know that it exists, what agency has it, and, ideally, in what form it is kept. Seife, for instance, had to know that NIH grant applications include conflict-of-interest disclosures and that grant applications are subject to FOIA. But how do you get from A, the realization that you want more information about something, to B, the exact report or memo that you need to request?

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Seife recommends getting to know an agency—poking around its website, reading its reports, and so on—to learn how it collects and stores information. “When you cover FDA [Food and Drug Administration], say, you begin to learn the sorts of documentation that they keep,” he explains. You might learn, for instance, that the agency is required by law to create a report on a particular topic every three months and that the reports have a particular nomenclature.

Some new tools can help with this. FOIA Mapper, a free tool created by data wrangler Max Galka with the support of a Knight Foundation grant, collects information about government databases and organizes it into searchable catalogs so that users can see what kinds of information the government keeps and where. For example, if you want to know how many people were apprehended at the U.S. border last year, you could use FOIA Mapper to uncover that the Office of Administration Statistics Program Records collects this information and that this system is overseen by the U.S. Department of Homeland Security (meaning that’s the agency you’d want to FOIA).

Looking at past FOIA request logs can also be useful, as they show the types of information others have sought. Some agencies, such as the Centers for Disease Control and Prevention (CDC), the Securities and Exchange Commission, the U.S. Department of Agriculture’s Animal and Plant Health Inspection Service, and the U.S. Department of State, make their FOIA logs publicly available online, while those from other agencies have to be, well, FOIA’d. (FOIA Mapper also has a cool search engine that allows you to do a keyword search of the publicly available FOIA logs, so you can see, for instance, who has submitted FOIAs about UFOs recently and to what agencies.) Each government agency is also required by law to keep an online FOIA “reading room,” which you can browse or search for previously requested basic records.

Another great resource is Muckrock, a nonprofit site where journalists, researchers, activists, and regular citizens come together to submit FOIA requests. Muckrock makes all of its FOIA requests available to the public along with the information they have turned up.

Where and How to File a FOIA Request

Once you’ve figured out what you want to FOIA, the request making is actually pretty easy. You can submit FOIAs online through agency portals (like this one for the CDC and this for the U.S. Department of Education) or send emails directly to the appropriate FOIA officers (the FOIA website keeps a handy list of agencies and their FOIA officer contact details). If you’re a journalist working on a story, you can request a waiver for FOIA search fees and up to 100 pages of free hard copies (beyond that, you’ll need to pay copy charges, but you may be able to circumvent the problem by asking that your request be fulfilled electronically). Many press-initiated FOIA requests, in other words, are completely free.

 

“The more you can help narrow the request, the faster it’s going to go.”

 

Another filing option is via iFOIA, a project of the Reporters’ Committee for Freedom of the Press, which allows registered users to submit, share, and follow up on state and federal FOIA requests, also for free. You can submit via Muckrock, too; there, four requests cost $20.

In wording a FOIA request, be simple but be specific. “The more you can help narrow the request, the faster it’s going to go,” Seife explains.

Dan Novack, a FOIA and First Amendment lawyer who practices in Manhattan, says to keep FOIA requests “small and tight and thematically consistent,” and to stop to think about what you need first. When he worked with a news organization that wanted to use FOIA to find out who decided to remove the Environmental Protection Agency’s main climate change page soon after President Trump took office, he advised them to either ask for all records relating to the page that had been created after Election Day, or to try to determine who at the EPA was likely to have been involved in the decision and then to FOIA emails sent to or received by that employee containing keywords like “climate change” and “website.”

If you do, however, need a variety of documents, Novack suggests splitting your request into a few smaller ones rather than grouping them together, so they can be fulfilled more quickly.

If you’re still uncertain about how to word your request, browse through some successful FOIA requests via agency FOIA logs or Muckrock, or check out these sample FOIA letters maintained by the National Freedom of Information Coalition.

Handling Pushback and Delays

Once you’ve submitted your request, you may, like me, experience some resistance. Some agencies will say your request is too broad or too burdensome, for instance, even if it really isn’t. If they do, Novack says, try to cooperate—otherwise they may reject or close your request.

But don’t be afraid to negotiate. “You can say, ‘I’ll take X out of the request if you give me Y,’ ” Novack suggests. (I ended up resubmitting my closed FOIA request but narrowing the scope a bit—I got my hands on an agency organizational chart and limited the email search to key employees in a particular branch—and the agency accepted it.)

Galka, the FOIA Mapper founder, sometimes asks his FOIA officer—who he emphasizes is essentially just an intermediary—if he can speak with the person at the agency who will actually be fulfilling his FOIA request. The officer may say no, but if he or she allows it, “when I do speak to that person, often it’ll be entirely clear what the situation is—they’ll explain to me why they can’t process the request or it’ll become clear that they can and they misunderstood what it is I was asking for,” he says.

 

Agencies break the law with regard to FOIA all the time—they’ll reject on unfair grounds, overredact, or take too long to respond—and reporters shouldn’t be afraid to appeal these actions.

 

If your request is accepted, Galka says, follow up on it regularly. By law, agencies are required to respond to FOIA requests within 20 business days, but many do not; FOIA is not likely to be useful if you’re on a tight deadline.

If your request gets rejected, consider appealing; Galka says he wins appeals about half the time. For instance, if you’re told that you don’t have a right to the information you are requesting, read up on FOIA law and cite any relevant parts in your appeal where applicable. My sources emphasized that agencies break the law with regard to FOIA all the time—they’ll reject on unfair grounds, overredact, or take too long to respond—and reporters shouldn’t be afraid to appeal these actions. If you lose, suing is an option, too: “I strongly believe that the power of FOIA comes from the fear that [agencies] will get sued,” Seife says. You can sue by yourself—what is called suing pro se—or you can hire a lawyer. And the good news is that if you win the case or the agency changes its position in response to your litigation, the agency has to reimburse your attorney fees and court costs.

Despite my initial frustration with FOIA, I’ve gone back for more. I now have four requests in the pipeline, and I’ll probably submit more this week. With submitting FOIAs, as with most skills, practice makes a big difference, Seife says. “You’ll start learning which types of FOIAs—and to whom and under what circumstances—give you the best results,” he explains. And then, every once in a while, and probably after a very long and frustrating wait, “you’ll hit pay dirt.”

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Melinda Wenner MoyerMark Bennington

Melinda Wenner Moyer

Melinda Wenner Moyer is a science writer based in New York’s Hudson Valley and is a frequent contributor to Slate and Scientific American. Follow her on Twitter @Lindy2350.

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