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NAVIGATING THE ROCKY

SHOALS OF THE FOIA

ANNE WEISMANN
CITIZENS FOR RESPONSIBILITY AND ETHICS IN
WASHINGTON
WHAT MAKES THE FOIA SO SPECIAL?

• It’s a law that creates a right to • The FOIA has specific timelines – 20
documents just by asking business days for normal requests
• If you don’t like the agency response you • Anyone can make a request; no need to
can sue (FOIA gives every requester justify why you want what you want
standing)
• Good government groups and journalists
• Unless a requested document falls within typically satisfy fee waiver requirements
an exception the agency must produce and get responsive documents at no cost
it
EVERYTHING YOU NEED TO KNOW
ABOUT THE “LAW” SIDE OF THE FOIA
• Once you make a request agencies have 20 business days to respond; in
“unusual circumstances” (e.g., complex requests that require a search in more than one place) agency can extend for another
10 business days
• Agencies must decide whether or not to grant a request for expedition within 10 calendar days, but oddly the FOIA doesn’t
spell out the time in which they must process expedited requests
• The FOIA requires agencies to make a “determination” within 20 business days, which means telling requester what they are
withholding and why and what they will produce
• If they do not make a determination in that time frame, you can go right to court
• If an agency makes this determination and you are unhappy, you can file an administrative appeal explaining what the agency got
wrong and why
• Agencies have to decide these appeals within 20 business days
• After that, you can go to court
FOIA EXEMPTIONS – WHEN AN AGENCY
CAN TELL YOU NO
• The FOIA has nine exemptions
• If an agency invokes one or more of them the agency has to tell you which one, why, and for
what document or document portion
• Exemption 5 often bars access to info about why an agency did what it did; it covers internal
deliberations (deliberative process privilege) and other privileges like attorney-client and
work product
• Exemption 5 is more of a yield than a stop sign – agency can waive, agencies tend to overcite.
By contrast others like Exemption 1, which protects classified information, and Exemption 3,
which incorporates other statutes that prohibit release (e.g. IRS tax info) are stop signs
THRESHOLD QUESTIONS:

• Am I asking for an existing document? (FOIA • Have I followed all agency procedures? (e.g.,
applies to documents, not information, that already expedition requirements, information needed to
exist – agency has no obligation to create new support fee waiver claim)
document)
• Am I sending request to proper office? (agency
• Am I making a request of an agency? (FOIA FOIA websites explain where to send and how –
applies to agencies, as term is defined in APA; email, fax, regular mail)
components of EOP that only “advise and assist”
• When in doubt, call the agency – all have FOIA
the president are not agencies)
liaisons
• Note some state information laws apply to
legislative branch (federal law does not) and other
entities that receive state funding so consider if
state laws are way to go
WHAT MAKES AN EFFECTIVE FOIA
REQUEST?
• Clarity • Focus
• Don’t assume person processing request knows • Draft the request as narrowly as possible; the
the subject matter; often first-line responder is broader the net you cast the longer it will take
charged with figuring out where request should to process and you run the risk you will get a
go lot of stuff you don’t want
• Put what you want up front, stated as clearly • If you know which office is likely to have
and succinctly as possible documents, say so
• Provide some background and context to help • If you know which documents you don’t want,
processors understand what you want and why say so (e.g., no personal information, no public
record information)
CONTENTS OF A SUCCESSFUL FOIA
REQUEST
• It’s addressed to FOIA Officer/agency designee as per • It provides context and background, especially where issue
website is of great public interest (helps generate public interest)
• At top it indicates method of sending (email, fax, etc.) – • Fee Waiver: it explains on what basis seeking waiver
this pins down date agency received it, which starts clock (subject concerns operations of federal government and
on response time need to inform public ; news media status)
• First paragraph makes clear it is a FOIA request • It provides contact information for questions and where
to send documents
• Second paragraph spells out what you want; if more than
one thing, use numbers or bullets for clarity • If expedition is sought, it complies with specific agency
requirements (e.g., under DOJ regs must submit to OPA if
• It spells out requested format for documents (paper?
reason for expedition is urgency to inform public; many
digital?)
require signed attestation expedition request is true and
correct)
HOW TO NAVIGATE AROUND THE
FOIA’S LIMITATIONS
• You can’t FOIA most components of the White House (no matter how hard you try), but
you can FOIA agencies for communications with and documents from the White House
• But note may face presidential communications privilege
• Some EOP components are subject to the FOIA (OMB, CEQ, USTR, OSTP, ONDCP)
• If you are not sure whether or not a document exists with the information you want, you
can ask for “documents sufficient to identify/determine . . .” or ask for “all documents that
show . . .”
MORE PRACTICAL TIPS

• If you don’t know which agency component is likely to have documents, do some research – agency
websites can be very helpful and you can always call FOIA contact and ask
• If an agency rep calls, BE NICE! They hold the keys to the proverbial kingdom and can affect how
successful you are and in what time-frame.
• IF the agency suggests narrowing, do it if at all possible. Otherwise they may consider your request
“unperfected,” of use your refusal to narrow as grounds for additional time.
• In response to a request to narrow, consider staging request, i.e., asking first for narrowed subset of
documents and, based on those, do follow-up. Agency will want you to file new request – negotiate to
be put at head of the line if you come back with follow-up request.
• Keep notes of conversations with agency reps, and save emails
SO YOU’VE
SENT A REQUEST, NOW WHAT?
• If the agency responds and you’re happy with what you got sit back, relax, and read the documents
• If you think the agency missed some documents, you can challenge adequacy of the search
• If you think the agency withheld material it should not have, you can challenge
• If you’ve waited a long time and have heard nothing, and your calls don’t produce any results suing may
be your only option
• Lawsuits take time, cost money ($400 filing fee), and are no guarantee of success
• BUT they show agencies you are serious and they keep agencies honest
• Plus if you win the agency must pay your attorney fees and costs