Even under the best of circumstances, obtaining records from federal agencies through Freedom of Information Act (FOIA) requests can be challenging due to the sheer size and complexity of the federal government. During the Trump administration, however, the federal government has become even less responsive to FOIA requests and has faced a dramatic increase in FOIA lawsuits, which has prompted hearings by the House Committee on Oversight and Reform on FOIA transparency under the administration. The Department of the Interior even passed a new rule – between Christmas and New Year’s Day in 2018 – that relaxed timelines for responding to FOIA requests and increased the burden on requesters to be more specific in their requests.
In this environment of FOIA becoming increasingly difficult, it is helpful for researchers and citizens seeking government records to remember the basics of FOIA requests and use these guidelines to map out a strategy. In this blog, we’ll discuss some of the foundational aspects of obtaining records via FOIA:
Be strategic in your ask: The natural tendency for most researchers is to be as broad as possible when requesting records to avoid potentially missing important records, however in an atmosphere of increased FOIA resistance, it pays to be strategic in your request. Be as clear as possible about what you’re requesting – if there are specific individuals you’re interested in, list their full names and emails; try to narrow the timeline of your request as much as possible. Narrowing the scope of your request might necessitate a second request, but it’s better to get a response that enables you to narrow your search further than to receive a blanket denial.
Negotiate, don’t hide: When federal agencies or other targeted entities respond to a FOIA request with a denial or ask for clarification, attempt to work with them to narrow or clarify the request in order to get a response. Sure, some agencies do not approach this process in good faith and are simply looking for a way to avoid transparency, but some agencies genuinely want to provide records but logistically can’t answer the request as written. It is best to proceed with the assumption that the person on the other end of the request is operating in good faith until you have reason to believe otherwise. Sometimes negotiating can remove the impediments to answering your request.
Log Review, Tailgating and FOIA Traps: A good strategy to obtain records is to request a log of all the FOIA requests that have already been submitted to the agency you’re querying, which provides not only what was requested but also who requested it and if/when the agency answered the request. In addition, researchers can practice FOIA tail-gating, in which a requester asks for copies of previous FOIA requests as well as the materials released in response to the requests. Another variation on the FOIA tailgate is the “FOIA trap,” in which a requester can place a standing request to be copied on all requests and attachments fitting a certain description or received from a certain party. Read our prior blog on these three strategies for further detail.
Utilizing a smart and considered strategy can be the difference between getting the records you need versus being left in the dark.