United States Project

‘Always appeal,’ and more pro tips from a dozen FOIA experts

March 17, 2017

In January, CJR contributors published a selection of FOIA best practices, based on an analysis of more than 33,000 such requests. Among a number of conclusions, the analysis showed that individual practices (and the responses to them) can vary widely. I’d emphasize that using the Freedom of Information Act effectively is about more than preparing a request. Rather, it’s about the process: researching the agencies, following up with FOIA officers, appealing denials, and so on.

It’s critical, right now, that we make the best possible use of FOIA. President Trump has spent his first 50 days in office trolling the press, and a Knight study released this week shows that nearly 90 percent of freedom-of-information experts believe public access will get worse under Trump. One way for journalists to protect that access is to exercise the rights that guarantee it. January’s analysis was a step in that direction, gleaning lessons from successful requests. This effort, based on subject-matter expertise, complements it.

In observance of Sunshine Week, I asked a dozen FOIA experts for one piece of advice that would help journalists and others use the FOIA effectively. Here’s what they said:

David McCraw, deputy general counsel, The New York Times: “Think of FOIA as a form of reporting. Just as you would do in seeking information from a source, do your research beforehand, know what records the agency has and what it has released, follow up, make human contact, figure out who’s who in the agency, and know who inside the agency might be able to help you if you run into a recalcitrant FOIA officer (it’s been known to happen).”

David Cuillier, author, Forecasting Freedom of Information: “Reach out to expert users for learning the nuances of FOIA, including those on FOI-Listserv, MuckRock, National Security Archive, Jason Leopold, Reporters Committee for Freedom of the Press, and the new Knight First Amendment Institute at Columbia.”

Adam Marshall, attorney, Reporters Committee for Freedom of the Press: “Take a few minutes before firing off a request to make sure it’s effective and well written. Think about how someone reading your request with no background information would interpret it, and revise your request to make sure it asks for exactly what you want.”

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Tom Blanton, director, National Security Archive: “Do your research before you file your FOIA, so you know exactly what records you’re after, where they likely exist, and who controls them. Then follow up to find a human being who’ll shepherd your FOIA.”

Jason Leopold, reporter, BuzzFeed News: “Before filing a request, research an agency’s system of record and determine where the records you are seeking may be stored. This will help to cut down on the time for searching for responsive records if you can advise a FOIA analyst where they may be located.”

Michael Morisy, founder, MuckRock: “The best requesters are those who build simple habits: Filing every week, looking for document angles in every news story, and always, always appealing.”

Ted Bridis, editor, The Associated Press: “Specify as much as possible exactly how and where the government should search for the information you’re requesting. For example, list keyword search terms, date ranges and specific inboxes you want a FOIA staffer to search.”

Trevor Timm, executive director, Freedom of the Press Foundation: “Be persistent. FOIA can be a painstaking and frustrating process, but following up on requests, reminding government agencies of deadlines, and being willing to file a lawsuit can eventually lead to success.”

Sarah Cohen, reporter, The New York Times: “Identify specific records by name, and don’t ask for elements of records that are specifically (but not necessarily) prohibited from release by law.”

Nate Jones, director of the FOIA Project, National Security Archive: “Always appeal. Government statistics show one-third of all requests that are appealed lead to the release of more information, but just four percent of all FOIAs are appealed; do the math and you see that over 150,000 FOIA requests and potentially millions of pages records are improperly withheld by the government unchallenged.”

Mark Zaid, national security and FOI lawyer: “The best way to be effective under FOIA is to be as specific and narrow as possible in requesting documents, as well as helpful in directing an agency where to search.”

Jessica Huseman, senior reporting fellow, ProPublica: “This is probably best targeted at people who are requesting data and not documents: Find out how the government stores the data, and then use their own vocabulary to specifically request what you want.”

Jonathan Peters is CJR’s press freedom correspondent. He is a media law professor at the University of Georgia, with posts in the Grady College of Journalism and Mass Communication and the School of Law. Peters has blogged on free expression for the Harvard Law & Policy Review, and he has written for Esquire, The Atlantic, Sports Illustrated, Slate, The Nation, Wired, and PBS. Follow him on Twitter @jonathanwpeters.