Always get the name of the dog.
You’ve heard that reporting advice before, but here’s another reason it’s sound: Helping with information requests.
Record requests can feel rough — pardon the pun — especially when getting started. Three experts in using the Freedom of Information Act and open records laws shared advice to help journalists and the public gain better access to government records that belong to the people. “My First FOIA: Open records are for everyone” was held on May 20.
Back to Fido: Agencies often redact officials’ cell phone numbers in information requests. Mark Walker, investigative reporter for The New York Times, suggests thinking about what other public documents exist that may contain that cellphone record: employee directories, or even a pet license. “You have to put your emergency contact” in that form, in case your pet gets lost, Walker said. “They can’t just give them a bad number.”
“If they have an animal, I will go to the city and I would pull their pet license, which is a public record,” Walker said. “I’ve never heard of anybody exempting or withholding pet license records.”
The program also featured Kirsten Mitchell, designated federal officer for the U.S. National Archives and Records Administration’s FOIA Advisory Committee, and Lulu Ramadan, an investigative reporter at The Seattle Times and a distinguished fellow with ProPublica’s Local Reporting Network.
“One way to think about whether the government has records is: If they inspect it or collect data on it or take some sort of an action, there’s a record there,” said Mitchell, who is also the compliance team lead for the U.S. Office of Government Information Services, the federal government’s FOIA ombudsman.
Do your homework before filing a request.
- Agencies can’t produce records they do not maintain. Know which agency — local, regional, state, or federal — houses the records you want.
- Learn from other successful requests. “When I was really early in my career, I used to request the records logs for state agencies so that I could see what’s in, like, the big newspapers’ — how they were framing their requests — because they were getting really specific documents,” Ramadan said.
- While conducting interviews, think about what sort of data opportunities exist that can move a story from being anecdotal to being documented fact.
- From your sources, learn as much as you can about documents you may want to seek: the names of forms, titles of reports, included content, possible page counts, etc. This information can help you narrow your request and expedite a response.
- Ask your sources or the agency for similar records or forms that have been released. “In the case of a health inspection that wasn’t already available, I would probably ask for one that had been made available, something I could get quickly so I could see what’s inside of it,” Ramadan explained. Previously released records can show you supplemental material to request or if there’s a better place to find what you are looking for.
Draft your request.
- Strike a balance between asking for a broad enough swath of records that you get what you want, and be narrow enough that the agency can find and deliver the records swiftly.
- Avoid the phrase “any and all” in requests to avoid the request becoming burdensome. When requesting emails, for example, narrow by subject matter, time frame, or people involved in those email strings.
- Cite the correct law based on the agency you are contacting. The Freedom of Information Act applies to federal and some regional records; you should cite the state open records law that pertains to the documents you are seeking at the local and state level.
- Include a section for the format you’d like records delivered in, and ask for documents to be delivered in a way you can access them. For example: PDFs can be hard to manipulate once you receive them. Requesting a .csv file or other simple text formats can aid your analysis. Consider your equipment and software access.
- Include a request for an estimated date for data completion and a fee waiver request.
- If requesting expedited processing, tie the need for urgent information to a current event.
- Include a section that states that if the agency plans to exempt any part of the request, the officer should contact you to discuss the exemptions.
- If you receive a response to any request — a fee waiver, fee category, or the documents themselves — and you’re not happy with, appeal it, Mitchell recommended.
Read public disclosure laws closely.
- Understand what exemptions to accessing records exist in your state so that you know what you’re entitled to see and who has final say on an exemption.
- Federal agencies are required to note on the documents shared which exemption was applied, Mitchell said. When any information is redacted, ask for a detailed explanation with reference to the exemption.
- Know key dates for the agency you are in contact with: Federal agencies have 20 days to reply to the request with fee and fulfillment estimates.
- Appeal if you feel an inadequate search or error in judgment was made.
Anticipate and manage potential fees for records.
- FOIA requestors are placed in one of three categories, which have different fee structures and requirements, Mitchell said. News media, for example, avoid fees for search and review at the federal level and receive their first 100 pages of documents at no cost.
- Journalists can ask for a fee waiver. Note in your request that disclosing the “information being requested is in the public interest because it is likely to contribute significantly to public understanding of operations or activities of the government,” Walker said.
- Government agencies should provide a fee estimate for the cost of staff time to search, review, and duplicate records they manage. “When you’re dealing with education and you’re dealing with health, there’s HIPAA and FERPA, and every record has to be reviewed really closely,” Ramadan explained. “And there is an understanding that when we request [a person’s] records, there might be a cost associated with it for that reason.”
- Ask an agency how much it’s charging per hour for review and redaction to better understand the estimate. Every state is different, Ramadan said, and fees can vary by agency.
- Talk to the record custodian if an estimate seems high. You might be looking for something specific, but overly broad phrasing may loop in records you don’t need, Walker said.
- When asking for email records, include a line to deliberately exclude personal newsletters, press releases, and other “junk” emails that you may not be interested in, Walker said.
Check out what’s already available.
- Seek out FOIA “reading rooms” or libraries, which house records that have been produced for any request agencies receive. Agencies are encouraged to share these publicly, and federal agencies are required to post produced records if they receive three or more requests for a single record, Mitchell said.
- When looking at federal FOIA request logs, sort out those that read “complete” or “processed”; those records are usually easy for a custodian to pull and give to you, Walker said.
- Call the agency to ask if it has already released something similar to the record you are seeking. Often, if it’s already been reviewed and redacted, an agency will just give the record to you, Ramadan said. “In conversations with the health district, I found that decade’s worth of health inspections had already been prepared and redacted and reviewed.”
- Make a regular practice of requesting records logs from agencies on your beat. They’ll show what other news organizations have on their radar, as well as show you successful language within requests that you can mimic. Don’t forget: Lawyers, members of the public, and employees take interest in cases and request records to support their causes.
Combine databases to do the analysis you want.
- When information is withheld or doesn’t exist, don’t get discouraged. While Ramadan was reporting on the rate at which voting rights were being restored to people with felony convictions in Florida, she faced that challenge. Former Gov. Rick Scott exempted crucial demographic information from a request Ramadan made for a database she knew existed, giving the reporter only names to work with. Ramadan and her team compared it to a Department of Corrections database and voter rolls to conduct their analysis. “We ended up learning that [voting] rights are restored to white applicants more often than black applicants,” she said.
Build relationships with the records liaisons.
- Get to know the officials managing the records. Engaging early — and recognizing you’re both trying to do your jobs — can go far in building a strong, mutually beneficial relationship.
- Staff at smaller agencies may not have a lot of experience with record requests, Ramadan said, making conversations key. Explain your right to the records and work with them to explore formats and time frames for getting what you need.
- Openness is important, Walker said. “Say, ‘I’m sorry for making your life really hard with all my FOIA requests … what can I do to make both of our lives easier?’ ” There’s a lot of work on both of your plates, and you can explain you don’t intend to make things harder than they are.
- Record liaisons see all of your requests and can be a great resource to ask about your habits — what works and what is tripping up your requests. Ask what you can do better and how you can improve communication.
- Stay positive about the relationship. “I’ve had records officers tell me exactly how to put in a request: Like, ‘This is the name of the document you’re looking for,’ just to streamline it for the both of us,” Ramadan said. “We’re all just trying to do our jobs. And then if things go wrong, then you can talk to your editors and take other steps, but don’t go into it thinking it’s going to go poorly.”