Ire-boston-foia

FILE NOTES BY BILL DENSMORE / densmorew@rjionline.org / m: 617-448-6600

SESSION: Navigating the Federal FOIA Maze

DESCRIPTION: Obtaining records through the federal FOIA can be like havigating a maze and, at times, contentious. It doesn’t have to be that way. Hear the director of an agency FOIA office, a veteran FOIA requester and a facilitator with the federal FOIA ombudsman’s office offer practical advice for making the FOIA process work and preventing disputes between requesters and agencies.”

Kirsten Mitchell, Office of Government Information Services/National Archives

202-741-5775 / kirsten.mitchell@nara.gov

Mitchell was a reporter at the New York Times Regional Newspaper Group, the Tampa Tribune and elsewhere before joining the government. Her overall view: She was amazed at the mind-boggling size and complication of the federal bureaucracy. She says the disputes aren’t often between the agency and the reporter, often they are between the FOIA officer and the person in the agency who holds the records. “Often the FOIA person is on your side.”

• FOIA doesn’t apply to Congress or to the federal court system.

• Two hours of search time and 100 free pages are free, after that you have to pay.

• Fee waivers are possible if the information is in the public, sheds light on government operations and isn’t primarily in the commercial interest of the requestor. Generally news-gathering requests are not considered to be in the commercial interest of the requestor.

• Major agencies all have FOIA public liaisons. Go to foia.gov where you can find a list.

Timothy Graham, Office of Infomatics and and Analytics

• He is in the Dept. of Veterans Affairs, with 280,000 employees. He represents the veterans health administration, his agency has 239,000 employees. They answer 98% of their requests within 20 days. Their backlog is 40 requests, down from 200.

• Try to understand the agency, if you don’t it may get lost in the wrong department. Research the organization to try to get it to the right agency right up front.

• Always include the FOIA Request Number after you get an acknowledgment letter and the person who is the designated point of contact. First thing that happens when an agency receives a request is they determine the scope.

• Make all requests clear from the beginning. If you ask for expedited requests or fee waivers, do that up front. Issues of fees stop the 20-day time period. In most cases they grant requests for fee waivers and expedited processing for members of the press. Don’t assume you qualify for both; make the request right up front.

• ”I would encourage you to be open and frank with the FOIA officer – tell them what you are looking for.” He likes to know where you are coming from and what you are looking for.

• Requests that are overly broad will likely result in the FOIA officer getting in touch to try to narrow it down so the records search request can be done more efficiently.

• Check up on your requests. Don’t be afraid to call the FOIA officer. Most FIOA offices are understaffed. They have a staff of five and 155 field FOIA officers in various VA officers. “You are very intimidating,” to a lower level FOIA officer; they are likely to be afraid to call you; you should call them. “You may be scary to them, that’s just the reality of the situation.”

David Donald, Center for Public Integrity

202-481-1247 / ddonald@publicintegrity.org

• FOIA works best when both sides talk. “And I agree, it’s about respect, it really is. Often the FOIA officer is in the middle.” Both sides have pressures.

• Go to the website of Reporters Committee for Freedom of the Press and study their FOIA resources. Donald says it is the best source possible on FOIA, open meetings, reporters rights and other information.

• Sometimes FOIA officers say they don’t like what you are gong to do with the data, or complain you are going to change their database after you get it. Those are not exemptions; turn those objections aside.

• Know the records – Get information about how the database is organized, what are the column fields. It makes it easier to set up the request and argue over potentials for redaction – the law may allow redaction of some data, but that doesn’t mean the whole database can be denied.

• Ask: “When should I check back with you?” …. “How would you prefer I file that?” . . . .. File early – there are legitimate reasons why it doesn’t always take just 20 days. Make the request early in your story, or even before your story pitch to your editor. Have a “document frame of mind from the start.”

What goes into a good request?

• Cite the law. Be specific without being too limiting. Leave room to negotiate down.
• Request the data dictionary, record layout, coding sheets and any other metadata.
• Know what the law allows regarding electronic formats – Agencies can always kick out their data in a text format. They will sometimes say they can’t, but if they say they can’t, find the manufacturer of the database and check it out. “Sometimes you do have to do some education along the way.”
• A example: One agency send data as an unchangeable PDF file because they said they were afraid Center for Public Integrity was going to “manipulate it.” He got them to supply it as a text data dump, instead.
• A denial requires an exemption supplied in writing.
• Know what reasonable fees should consist of.
• Be firm, be persistent, take the high road. “I find that always works better than getting down into the gutter.”