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Notes from the Field: The Art of Crafting a FOIA Request
09 / 23 / 13 | By: Steve Swisdak
The Freedom of Information Act (FOIA) is yet more proof of the adage “no good deed goes unpunished.” Though intended to facilitate greater transparency in government, as those who have submitted a FOIA request can attest, the process can be maddeningly opaque.
Enacted in 1966, FOIA (5 U.S.C. § 552) established the public’s statutory right of access to federal government information. Getting it passed took 12 years and the concerted efforts of a little-known California congressman, John E. Moss, who railed against government secrecy. Ironically, Moss’s FBI file — obtained through FOIA after his death — returned a stack of documents two inches thick.
Since then, “FOIA” has become not just an acronym but a noun (“I submitted a FOIA for that information”) and even a verb (“should we FOIA that?”). Over the years, though, FOIA has brought to light many noteworthy records, including the release of DOT records on the safety of the Ford Pinto, photographs of flag-draped coffins returning from Iraq, and even the CIA’s recent disclosure of the existence of Area 51. At History Associates, we understand the proverbial nuts and bolts of FOIA and have learned over the years the art of a properly crafted FOIA request.
The Nuts and Bolts
The federal government’s FOIA (and similar state “sunshine laws”) enable the public to gain access to government records, with federal agencies only allowed to deny access in the case of ten specific exemptions (e.g., national security, personal privacy, and proprietary business information).
Although agencies must respond to FOIA requests within 20 business days, a “response” can merely mean acknowledgment of your request, with the actual fulfillment taking much longer. Thus, it is common for some agencies to take months or even years to respond to certain FOIA requests. According to statistics available on FOIA.gov, the federal government had a backlog of almost 72,000 FOIA requests as of the end of FY 2012.
To help the public navigate the FOIA process, Congress passed the Openness Promotes Effectiveness in our National (OPEN) Government Act of 2007, which established the Office of Government Information Services (OGIS). OGIS acts as the “federal FOIA ombudsman,” facilitating communication between FOIA requesters and federal agencies and mediating FOIA disputes. When FOIA requesters believe that agencies have wrongfully withheld certain records or have been uncommunicative in responding to a request, they can solicit help from OGIS.
Agencies can charge fees for the processing of FOIA requests, including fees for search, review time, and duplication costs. While costs are typically less than $500, they can go much higher, depending on the scope and nature of the request.
In our experience, the best time to submit a FOIA request is after you have thoroughly exhausted other research avenues and determined that information of interest is not available elsewhere. Once you have decided to submit a request, you need to determine which agencies might maintain information of interest and then provide the appropriate FOIA offices with as much information as possible to guide their search. In doing so, think of yourself as a modern-day Geppetto — a puppeteer of sorts guiding agency records officers as they search for records of interest to you.
Remember that in a FOIA request you are basically asking an agency records officer, who probably knows little about your topic, to conduct research on your behalf into their agency’s records. The most effective FOIA requests, then, are as specific as possible about the information of interest, without being so focused that they preclude the release of potentially useful information. Helpful information in FOIA requests can include a list of agency offices that likely created records of interest, or specific accessions, boxes, or folders of interest stored in the federal records system. In short, the more information you can provide in your request, the more likely you are to get relevant records
At History Associates, we have developed in-house resources that enable us to create targeted FOIA requests. For example, with respect to Department of Defense (DoD) requests, we have compiled a database that contains summary information on all significant DoD contract actions since FY 1966. Through the use of this database, we can craft FOIA requests to DoD agencies that identify specific contracts and/or contractors of interest.
The Need for Patience
Finally, after conducting careful research and submitting a well-crafted letter, it’s good practice to follow up with agency officials and to keep a record of your interactions with them; it may take time and require additional clarification with FOIA officials before your request is fulfilled. While the FOIA process can be time consuming, and even frustrating, it can also be an invaluable means of obtaining government information.
Originally published in our HAIpoints newsletter. View newsletter page.
Categories: Historical Research