FOIA basics: a primer

Shawn Musgrave

Editor, MuckRock@shawnmusgrave || @muckrockshawn@muckrock.com

The Freedom of Information Act

Signed by a (very reluctant) LBJ on July 4, 1966I have always believed that freedom of information is so vital that only the national security, not the desire of public officials or private citizens, should determine when it must be restricted.

More FOIA history: http://www2.gwu.edu/~nsarchiv/nsa/foia/aboutfoia.html

The Freedom of Information Act

State public records lawsEvery state has a statuteSome are better than others:ExemptionsResponse timeAppeal mechanismTreatment of electronic recordsRead up on your state's statute:http://www.rcfp.org/open-government-guide http://www.nfoic.org/state-foi-resources

Central FOI principles

Access is a right, not a courtesyPresumption of opennessDocuments, not questions

Access is a right

These are not courtesy requests, and you are not a customerRequests are legally enforceableExtensive case law read up!

Presumption of openness

Every government record is subject to FOIExemptions must be narrowly, specifically appliedIn face of doubt, openness prevails.

Documents, not questions

Must identify government recordAll documents related to... Official familiar with the agency must be able to conduct reasonable search

Crafting a FOIA request

What agency?What document?What to include in the request?Where to send the request?

What agency?

Particular component, division or unit Federal, state and federal-in-stateMultiple agency requests

What document?

Know the name OR the circumstancesFinding the name:Administrative procedures and handbooksRecords retention schedulesAnnual, semi-annual and quarterly reportsInspector general or audit reports Finding the circumstances:Administrative procedures and handbooksPublic statements and press releases

What to include?

Statute name:This is a Freedom of Information Act (FOIA) request.This is a request under the Access to Public Records Act (APRA).

What to include?

Clear description of records sought:... all arrest reports, including narrative, completed for June 25.... the grant application submitted to the Federal Emergency Management Agency Urban Area Security Initiative (UASI) in fiscal year 2013.

What to include?

Any backup information you have handy:This report is required to be completed on an annual basis by the National Defense Authorization Act of 2005.The NYPD administrative handbook, procedure 325-18 (attached in part), indicates that these memos are compiled on a regular basis.An agency spokesperson indicated that such a review was initiated on July 2. The following statement was given to the Bergen County Record: ...

What to include?

Valid contact informationRequests can (often) be anonymous BUT give consistent contact information

Where to send?

Confirm whether the agency, component or division processes its own requestsAscertain precise contact information, particularly for state and local agenciesFederal agency contacts:http://www.foia.gov/report-makerequest.htmlEmail versus fax versus mailMultiple agencies start a footrace

So you've submitted it...

Confirm receipt in writing, including date receivedKnow response window federal is 20 business days, states vary Be vigilant in followup and anticipate negotiationRead up on appeals process

Troubleshooting

@muckrock or @shawnmusgraveFOI question board: https://www.muckrock.com/questions/FOI-L listserv: http://www.nfoic.org/foi-listserv National Freedom of Information Coalition:http://www.nfoic.org/state-foiReporter's Committee for Freedom of the Press: http://www.rcfp.org/open-government-guide