After an eyeball-bleeding-stay-up-till-3AM research session, you get an idea. The information you need to complete your project must be in the file cabinets of a government agency. Thinking back to all those History Channel documentaries that reference obtaining documents from the Freedom of Information Act (FOIA), your head hits your pillow in the sweet belief all of your research problems are solved…Unfortunately, getting documentation via the FOIA isn’t as easy as making a wish to your fairy research godmother.
The FOIA was established in 1966 by President Johnson as a mechanism that allows anyone to request information from the government. (The present mutations of the FOIA can be found at the Department of Justice website here.) In the last few months I’ve been involved in a project that’s forced me to request documents from the Department of State, Central Intelligence Agency (CIA), and Federal Bureau of Investigations (FBI). The process has been a mind numbing morass of following the precise forms and procedures necessary for completing any FOIA request. Here are a collection of steps and tips to take when making your FOIA request that might make the process go a little smoother than my experiences have been.
1. Go ugly early. Getting any information out of a government agency is going to take time. A FOIA request can take months, if not years, for a government agency to comply with. Spend a little time on the front end making sure the information you need isn’t languishing somewhere outside of the FOIA universe. Many government agencies have “electronic reading rooms” where documents are already on the web. Check those out for the items you’re looking for before wasting your time with an FOIA request.
2. Know who and what you’re looking for. FOIA requests must be made to the specific agency that holds the documentation. There is not mystical FOIA clearinghouse the government has set up to track down your requests. Each government agency has FOIA procedures and a coordinator that handles requests. Before making your request, go to that agency’s website to find out what that particular agency’s FOIA requirements are. A FOIA request can be denied simply on the grounds that you didn’t file your paperwork correctly. The search will also be easier to fulfill if you have a specific document number or a good reason to believe the agency holds the information.
3. Count the cost. The fulfillment of a FOIA request may not be free. The FOIA regulations allow for charges such as: research time, copying fees, and other miscellaneous charges related to your request. If there is a fee schedule available on your target agency’s website, you can get a ball park cost on obtaining the information you requested. There are instances in which these fees may be waived or reduced. If you’re a student, or requesting for an accredited academic entity, many times the fees can be reduced. If you’re willing to get electronic, rather than paper copies, you can reduce your bill.
4. One thing at a time. When you’re ready to make your request, do not lump all of the documentation you need in one request. If your request has 10 documents listed and you get a denial letter, there is no way of knowing which specific document has been stymied. An agency may have only denied one document on the list which could shut down the entirety of your request. If you make separate FOIA requests, you at least know the status of each bit of documentation you need.
5. Sitting by the phone. After you have made your request, agencies must acknowledge they have received your request in 20 business days. If this requirement is not met, you have the legal right to sue the agency in a Federal court. Good luck with that tactic. (Recently the CIA won a FOIA suit on the release of two volumes of their Bay of Pigs History by stating the information could confuse the American public.) If your request has been acknowledged, there is no time limit in which the agency has to turn over documents. Play nice and stay in contact with your FOIA officer. Drop him/her a love letter ever so often checking on the status of your request. While agencies have a “first come first served” fulfillment requirement, a little sugar never hurts to keep the train moving.
6. Try, try again. Your FOIA request can be denied for any number of reasons. A list of FOIA exemptions can be found at the Equal Employment Opportunity Commission (EEOC) website. If you’re rejected take heart, you can appeal the decision on any grounds. Your appeal will be taken to the agency’s FOIA committee for review. Use any and all logical and legal reasons you can think of to appeal the denial. Do not be vague or inflammatory in your appeal. No one in the government will respond kindly to, “I have a right to know”. Once again, be professional and play nice. This is also the time to ask questions of your FOIA officer. If your request has been rejected on grounds of a national security interest, ask how long it will be before the documents are declassified. The unsealing of documents varies from agency to agency. For example, the Department of Defense has a fairly regular interval for making documentation declassified while the CIA makes up the declassification rules as they go along. The CIA is also fond of the Glomar denial. In this denial you will receive a letter saying, “We can neither confirm nor deny the existence of the information you requested”. Unless you have some compelling piece of evidence that proves the denying agency has the information, you’ve been shut down by the man.
7. The final frontier. If your appeal is denied, you can sue the agency in Federal court. Unless you’re a lawyer, this could be a costly roll of the dice. If the information you’re seeking is that important, speak with an attorney about the possibilities of a lawsuit. Once again, good luck with that route. Lawsuits can take years and thousands of dollars to pursue, so make sure the information is worth it.
The FOIA process is a daunting task, but the rewards can literally be a gold mine. Obtaining information from an FOIA request can be the unique piece of evidence that allows you to tell a story no one has ever heard.
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