‘Approach FOIA as you would an investigative story’

It’s Sunshine Week, the annual celebration of access to public information, this year coordinated by the Joseph L. Brechner Freedom of Information Project. To commemorate the power of public information, we’ve asked experts to share their tips for requesting open records and responding when facing roadblocks to access.

Jason Leopold, senior investigative reporter at Bloomberg News, has filed more than 9,000 FOIA requests. He’s known to certain government agencies as a “FOIA terrorist” for doggedly fighting for access to information. And he recently launched a FOIA newsletter that offers a behind-the-scenes look at challenging government secrecy. 

Here are Leopold’s top tips for obtaining open records on a deadline, keeping request costs reasonable, and narrowing a request.     

How did you become known as a “FOIA terrorist”?

Leopold: There are many nicknames that the government has given me as it relates to FOIA. The Department of Justice has referred to me as a “member of a FOIA posse” in an email that I obtained through FOIA. And the FBI said that I was terrorizing their FOIA officers. This was years and years ago, and someone said, “Oh, he’s a FOIA terrorist.” It kind of just stuck. 

NSA [National Security Agency] has said that I weaponize the FOIA. They actually went to court and said that and got kind of spanked by the judge for doing that. Agencies have lots of different nicknames for what I do even though it’s part of my job and in the public interest.

What are some creative avenues reporters can take when they are seeking records?   

Leopold: Never, ever just fire off a FOIA request. You have to do things very differently these days … Government agencies at the state and federal level are backlogged — FOIA has become a very popular, useful tool for journalists and also members of the public. And the agencies are not devoting additional resources like hiring staffers to reduce the backlog, so it’s just piling up. 

I advise people I speak with to approach FOIA as you would an investigative story. That means building source relationships with people in that world and getting to know how an agency functions. For example, if you’re filing a request with the Department of Homeland Security, keep in mind that the Department of Homeland Security has many different components within that agency. Which is the right part of that agency where your request should go? 

In addition to that, what has become standard language in my template is, I always instruct the agencies to omit news clippings and press releases. Oftentimes, when an agency will respond and say, “We found 25,000 pages” — what’s happening is that they’re getting emails with news clips in them or press releases or listservs. If an agency is not instructed to omit those, they’re going to process everything, and that’s going to take a lot of time. 

Also, be sure you have a timeframe: I want these records from this date to this date. Make sure that you know which custodian or official that you’re asking for records from. 

How do you manage keeping FOIA request costs reasonable for your organization?

Leopold: What I do is try to explain how I intend to use these records. For example, I intend to post these records on Bloomberg.com, we have millions of readers and people will be able to access it. … These are not in my commercial interest. The agency should waive fees because I intend to share it with everyone. 

Taking those extra steps to inform an agency of why this is in the public interest, how you intend to use the records to inform the public, and as a result of that, why those fees should be waived, has proven to be very successful for me. Simply saying “I’m a journalist” doesn’t cut it. 

You recently filed a FOIA suit seeking FBI records on the investigation into President Biden’s handling of classified documents. Since lawsuits take both time and financial resources, can you discuss the benefit of suing elusive government agencies? 

Leopold: I’ve filed more than 100 lawsuits against federal government agencies. I do that very strategically. … Whenever I file a request, I wait about a month or two and ask for an estimated date of completion. I’m not sure requesters know, but by law every federal government agency has to provide you with an estimated date of completion when they expect to produce records. That’s valuable information if you’re working on a story or an investigation because it will tell you when you can expect to get any documents. 

So, if that date is far out — for example, I just reached out to the Department of Justice’s Office of Legal Counsel for an estimated date of completion, and they said, “We’ll get your records in September 2025.” To me, that’s too long. So do I want to sue? 

Basically, when you sue, you go into another queue. You’re essentially put on top of the pile. … What I do when I’m litigating is simply trying to get the records faster as opposed to, “I didn’t get what I want, and now I’m going to go to court.” It’s really trying to speed up the process. It underscores … how broken FOIA is because lawsuits are seen as an avenue to expedite the release of documents. 

You’ve submitted thousands of record requests throughout your career. What is the oddest request you have ever filed?

Leopold: The oddest were definitely during the Trump years. There were instances where Trump would tweet something and it would amount to, in some cases, a declassification because he was president of the United States. So then I would go file a request for certain records. 

Toward the end of Trump’s tenure as president, he called for the release of all the Russiagate evidence that the FBI had collected. He said, “This should all be declassified and released.” I had a long-running lawsuit for certain records related to that investigation, and the government was withholding a lot of those records. But with Trump’s tweet, it kind of opened the door to allow me to say, “Hey, court, you should give this to us now because Trump tweeted this.” 

So my attorneys filed an emergency motion in court saying just that. The judge in the case forced Mark Meadows to submit a declaration to confirm whether Trump meant what he tweeted. And Mark Meadows was ultimately forced to submit a declaration that said, Trump did not mean what he tweeted and therefore these records should not be released.

So that was like the oddest thing because it was the president of the United States … and I ultimately didn’t get anything. But what I did get is an admission that Trump did not mean what he tweets.

Can you walk us through your process once you receive a large amount of records. What do you look for first and what are your top tricks for wading through a large volume of files on deadline?

Leopold: I wish it was more of a case where I would get, you know, thousands of pages, but it’s just not happening these days. But when I do get the records, I’ll read them and start making notes on a Google Doc about certain pages that are significant. 

I study all the exemptions that these invoke to withhold certain records. So if something is heavily redacted, is it redacted under what exemption? Sometimes that provides me with a clue as to what may be underneath the redaction. There may be instances where I will then reach out to sources who may be able to tell me what’s underneath the redactions and how to understand it. So I give it an initial read, then I go through another careful review. Then I may challenge the withholdings by appealing to the agency. It’s a multi-step process. 

If there is something on deadline — and I’ll give you an example, which is documents I received a couple years ago related to the search over at Mar-a-Lago and Trump’s shipment of documents over there. I ended up getting a set of documents from the GSA [General Services Administration], and they were revelatory. There were pictures in there of boxes being shipped to Mar-a-Lago, so I had to work very quickly. Luckily, these were not heavily redacted, but I teamed up with another reporter. We make sure that the records are OCR’d [optical character recognition] — we’ll do some word searches and try to build a timeline out of the documents, and try to find a narrative thread within them.

What advice do you have for emerging journalists who have received their first record denial?

Leopold: It is to the benefit of the requester to really know state public records laws and the federal FOIA. And that means read it. Read what those laws say to empower and arm yourself with information so you can challenge denials. 

… Approach public records and the FOIA as you would approach an investigative story or a news story. Build sources in that world. Find people who used to work as FOIA officers processing records requests. Get them to tell you what an agency’s system of record looks like. Try to find out as much as you can about how an agency functions. 

Arm yourself with that kind of info, and then build a pipeline. You should try to file requests multiple times per month because by month six, you will end up seeing a steady flow of records.