Drafting a Quality FOIA Request
The Columbia Journalism Review recently conducted an interesting study concerning FOIA requests; particularly, what makes them effective. You can find the report here: http://www.cjr.org/analysis/foia-request-how-to-study.php
In my experience, journalists tend to treat FOIA as a file-and-forget. Because they (correctly) perceive the likelihood of a comprehensive and timely response to be extremely low, they cut their losses ahead of time and fail to put much effort into it.
That is a mistake. In my experience, the more care you put into drafting your FOIA, the more you will get out of it. Spending 30 minutes instead of 5 might give you a great shot at teeing your FOIA up to become a winnable case. That brings the prospect of winning legal fees - a critical factor in retaining an attorney to fight it on your behalf.
Here are a few tips for drafting a quality FOIA request:
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1) Consider Your Audience:
Journalists rarely take the time to explain their purpose in seeking information. For instance, "I am seeking to learn which experts the agency consulted before implementing the rule."
Without context, how is an agency supposed to properly and comprehensively undermine you? I'm only half-kidding. Given that most (all) agencies routinely deny requests via excessive redaction or delay, journalists should consider their FOIA request's ultimate audience: a federal judge.
By the time you make it to court, you have been living this. Your judge, on the other hand, is coming in fresh. A Complaint is a less than ideal medium for communicating the import of your request - a simple topic sentence in the request itself will get your judge up to speed.
By the same token, attach a few relevant press clippings about the issue, both to educate the FOIA officer and your judge. Demonstrate that you aren't the only person who believes the information you seek is of immense public interest (although it's ok if you are - FOIA is a lonely game).
2) Identify What Kind of Document You Want:
FOIA does not require an exhaustive search by the agency, merely a passable attempt. So it is incumbent on journalists to make it clear where the FOIA officer needs to look so there are no excuses later.
If all you want is a specific document, ask for it. But if you don't know what documents are out there, identify the categories of documents that could be relevant: emails, memoranda, reports, contracts, etc. Simply asking: "I want the agencies materials about x" isn't going to get it done (though it's a pretty decent topic sentence!).
3) Keep it Simple:
Technically, an agency gets 20 working days to substantively reply to your request, meaning produce documents or deny access. A lack of either response is a constructive denial, which can be appealed or sued. But you aren't going to do yourself any favors if you drop a 50,000 document request in an agency's lap, then complain to your overworked federal judge that the overworked federal agency didn't fulfill it in a month's time.
Plus, drafting an omnibus request that is likely to entail thousands of documents is a surefire way to go to the back of the line and make monitoring compliance extremely difficult. The beauty of FOIA is that you get unlimited bites at the apple. Break your requests down into smaller chunks by date, subject matter, or document categories.
Also, be sure to itemize requests, so you, your FOIA officer, and your judge have a common source of reference - i.e. "The agency failed to produce any documents in category three: email correspondence."
4) Stay On Them:
Call and email frequently, asking for updates. Leave voicemails. Log every call you make and the substance of each call, and save your emails. Ask for the name of the individual you are speaking with. In other words, be relentless. As Will Smith said in the forgettable film FOCUS, "There's no room for heart in this game." Granted, on the surface he was referring to con-artistry, but the sentiment is equally true of FOIA.
Play nice too. Offer to narrow your request if they agree to fast-track it or produce documents on a rolling basis. Polite persistence can go a long way towards showing that the agency constructively denied your request by failing (or refusing) to provide updates, or ignored offers to make life easier for them.
5) Get a Lawyer:
At the end of the day, agencies know that even the most persistent requester rarely has the resolve of means to sue. In my experience, threatening to sue often does work, if the threat is not idle. After my first lawsuit against the DOJ, I noticed I received better (but not great) customer service than in the past.
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Those are but a few simple ways to improve your FOIA requests. If you would like to set up a pro bono training for yourself or your news organization, please don't hesitate to contact me at dan@novackmedialaw.com.
- Dan Novack