Transparency: Getting past "No" - IRE 2013

1. TALKING THROUGH FOIA PROBLEMSTALKING THROUGH FOIA PROBLEMS
David Jackson, Reporter, the Chicago TribuneDavid Jackson, Reporter, the Chicago Tribune
Reach out to agency officials before you file a FOIA,
and encourage dialogue at every step of the process.
Some tips to trouble-shoot problems and expedite
records release.

2. • Be sure your FOIA request is going to the right official.
• If you cannot reach the FOIA officer directly to confirm,
contact the agency's general counsel, the press officer
or the head of the agency.
• If the agency does not immediately respond, file your
FOIA but quickly follow up to ensure it got to the right
place. Add: "Please contact me immediately if this
FOIA presents any undue burdens or problems."

3. • Prior to filing, describe your request.
• Ask: "Have you handled this type of FOIA
before? ... Have other people sought this sort
of information in the past? Did any particular
problems crop up? ... Is there anything I
should know in advance that will make your
work easier and get me the records faster?"

4. • Try to get a concrete picture of what is entailed in
producing the records.
• Some production burdens can be eased or avoided.
• Ask if the agency has suggestions that would expedite
release and consider any points they make.
• When redaction is not the issue, try to collaborate or ease
the load: "Can I come over and look through the boxes
before you go through the trouble of copying them?"

5. • Resolve cost issues upfront.
• Ask: "Does your agency charge fees for their
searching, retrieval and copying? If I request a
fee waiver, should I include that in the FOIA or
does that request have to be made
separately?“

6. • Ask the FOIA officer if there is any terminology
that would make the request easier to fulfill.
• If you remain uncertain, file a request seeking
"records sufficient to show..."

7. • Bird-dog any request you file. Make it clear that you're
aware of the legal timelines for response.
• Make careful notes of your contact with agency officials.
Keep a simple call log.
• Send confirmation emails concisely reporting the gist of
phone conversations: "As we just discussed . . . . "
• Some FOIA officers appreciate the chance to share their
experience or expertise, and are justifiably proud of their
public service. Express thanks when that's appropriate.

8. • Before filing an appeal, try to challenge any
denials in a conversation with the FOIA officer
-- or with the agency PIO, general counsel or
chief. A dialogue may resolve obviously
unfounded exemptions.

9. • Even if you're genuinely angry, stay off your
soapbox.
• Approach government officials as professional
colleagues and focus on resolving concrete,
technical issues.

10. • When denials do not include a specific basis
for each exemption, explain that you are
entitled to a factual, reasoned basis for any
denial.
• Explain that the lack of specificity may be
grounds for an appeal or legal challenge that
could overturn the denial.

11. • Evolving personal privacy laws have
heightened the reluctance of government
officials and undermined journalists' access
rights. Try to determine if the requested
records contain specific data fields that you
live without, and how much work redaction
entails.

12. • Make a forceful public interest case for release of the
requested records. Explain specifically why in this case
the requested records are:
• a) meaningfully informative about government
operations;
• b) "likely to contribute" to an increased public
understanding of an important topic; and,
• c) not already in the public domain.

13. • Explain that you are going to write about the
agency's denial -- if indeed you intend to do so
-- and say you need a quote or interview
explaining the denial.

14. • Even as your appeal is pending, file new FOIA
requests for vital and gettable parts of the
information. Now that you understand what
they aren't willing to provide, go back to
square one and think about what else you
might request and get.

15. • When you encounter unwarranted hostility or
illegal obstruction, your job is to represent the
public's right to their records, and to do so in a
way that will stand up in court and in the high-
stakes court of public opinion. . . .

16. • Observe the highest personal and professional standards as
you interact with government officials.
• Act as if a tape is being made of every word you utter and
every deed you do. Conduct yourself in a way that would
make your newsroom and readers proud.
• Keep your eye on the ultimate goal: publishing information
that is held by the government agency but belongs to the
public.
• And keep copious notes!

17. Jack Gillum, APJack Gillum, AP

18. The federal FOIA, 5 U.S.C. 552
-Access to records of federal agencies in the Executive Branch.
-Usually, the agency has to provide a good reason for holding
records back. The nine exemptions:

19. Averting problems from the start
• Be as specific as you can. Asking for “all emails sent to
or from Deputy Undersecretary John Jones since the
beginning of time” will likely set your request back
months -- or years.
• Go to the correct agency. For many federal FOIAs,
knowing the right records custodian is half the battle.
Conversely, the same documents or data you’re
seeking may be at another agency, with potentially
more-promising results.
• Give a good reason why your request should be
expedited. Just being a member of the press isn’t
enough, especially in light of some agency regulations.

20. Dealing with delays
• Stay on top of your request. Federal agencies have 20
working days to respond to your FOIA. A friendly call to
the FOIA office doesn’t help.
• Ask for documents on a “rolling basis.” This prevents
the FOIA office from waiting until they have everything
responsive before putting it in a big box or on CD. Asking
for your documents may also slightly speed up copying
delays.
• Be nice . FOIA officers have to deal with a lot of
requests — most of which are not from journalists, and
some are from folks who think Apollo 11 was staged in
Hollywood. So, be courteous. A handwritten note to a
very helpful FOIA officer couldn’t hurt.

21. When things go wrong
• Push back. The law allows a requestor to appeal. Sometimes, the FOIA
officer either didn't fully understand (or read) the letter. Clearly state your
reasons under the law why your records should be released. (See the
Reporters Committee guides at rcfp.org).
• Go to OGIS. The Office of Government Information Services is a nascent
agency in the National Archives charged with, among other things,
mediating FOIA disputes. You should administratively appeal your request
first before going to them.
• Go nuclear if it’s really egregious. If an agency wants to charge you $50
million, go to the press office and say this is fodder for a story. (It’s
newsworthy if an agency is deliberately obfuscating your request,
especially if the records are of public importance.) You might also get the
records pried loose in the process.
• Sue the agency.

22. Stay up to date with caselaw
Majority opinion in Lake v. City of Phoenix (2009):
“Arizona law provides that ‘[p]ublic records and other
matters in the custody of any officer shall be open to
inspection by any person at all times during office hours.’
Ariz. Rev. Stat. § 39-121 (2001). The City of Phoenix denied a
public records request for metadata in the electronic version
of a public record. We today hold that if a public entity
maintains a public record in an electronic format, then the
electronic version, including any embedded metadata, is
subject to disclosure under our public records laws.”
This means Arizona FOI requests can get all sorts of data!

23. Usual data excuses -- state or federal
• “We can’t create a record for you.” This usually stems from literal
reliance on statute. It really means something that stands to reason: They
can’t create something that doesn’t exist. But asking for a column to be
formatted differently — or encrypted to protect privacy — is different.
• “It will cost you $28,298,109.” This common tactic usually conflates the
law on paper copying fees, such as $0.25 per page. Calmly explain that
electronic records don’t endure the same kinds of reproduction charges
as paper records, unless they’re using a 1972 mainframe. (That alone
might be a story.)
• “It’s prohibited/private/super-duper secret.” Use the law to your
advantage. After all, they’re using it keep you from the records. Many
states have specific statutes or court-derived exemptions under which
records can’t be released. But exempt records often must be redacted
and the remainder of the documents or records disclosed.

24. General tips for getting data
• Work with IT folks. Yes, you may have to go through the front
office or the FOI officer at first to get the records. But getting access
to the system administrator will pay dividends. They’ll be resistant
at first, but once you build a relationship with them, getting records
should be a breeze. Also helps when the PR folks think you’re
speaking a foreign language (say, SQL).
• Source up. FOI requests are just one way to get data and
documents. If you cover an agency, make friends with people who
have access to data. They, at the minimum, could provide you with
clues about where the data are stored.
• Be persistent. This goes for reporting in general, as we all know
that “no” is only a beginning. This also applies to filing records
requests regularly: The more you engage with an agency on public-
records requests, the better.
• Write about denials.

25. Data formats you may encounter
• Plain-text, ASCII-delimited files
• Comma-separated files
• Tab-delimited files
• pipe “|” delimited files
• Spreadsheets (Excel, OpenOffice)
• Open Database Formats (SQL Dump File, SQLite)
• Web pages: XML/HTML
• Proprietary data formats (.mdb, .dbf, .spo,
.spss, .ssd, etc.)
• PDF files
• Paper

26. Types of databases/docs to seek
Aim for digital records if you can!

27. Problems with paper documents

28. How did it turn out?
512-4637525 Number Destination Duru
Amt 'I`cIcph0nc: 512-463-7525
GOVERNOR LINE ATT I [18:51:110 ISI
TX 1.2 $[1116 I (19:55:110 TX [1.6
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29. GOVERNMENT
TRANSPARENCY:
GETTING PAST "NO" WHEN
GOVERNMENT PUSHES BACK
2013 IRE National Conference
by Angela Galloway
Davis Wright Tremaine LLP

30. Basic Concepts
 FOIA: All records of the agencies of the federal
government must be accessible to the public, unless
specifically exempt.
 Nine categorical exemptions under FOIA law
 Generally, the federal statutory exemptions permit an
agency to withhold access to agency records; they
do not require an agency to withhold.
 Still, in practice …

31. Basic Concepts: State
 State public records acts:
 Operate similarly in that they presume disclosure
and specify exemptions. But there are major
differences among state statutes and between
them and FOIA. Best advice: know your state.
 Sometimes provide better enforcement (e.g.,
penalties in some states)

32. What we will cover
1. Starting on the Right Foot: How to establish a
strong position in case government resists
2. Dealing with the Pushback:
1. Negotiate
2. Administrative appeal
3. OGIS
4. Court
3. Get Help: Legal resources

33. The Right Foot
Bolstering your legal rights from
the first step.

34. The Right Foot:
Choosing the Best Agency:
State or federal?
 For federal info, check the US Government Manual (
http://www.gpoaccess.gov/gmanual/index.html), which
describes agency functions).
 RCFP Open Govt Guide
 (http://www.rcfp.org/open-government-guide)
Were the documents shared with a second agency?

35. The Right Foot: RCFP guidance
on state laws

36. The Right Foot: Choosing the
Agency cont.
 Once you select a federal agency, check its
online resources & FOIA policies.
 The policies usually identify the specific employee
responsible for processing FOIA requests.
 Know the record-retention policy (for timing and
global picture of what’s retained).
 Both the underlying law and the agency’s policy

37. The Right Foot: Formal or
Informal Request
Benefits of informal approach:
Strategic: Cooperation can save time/energy.
Professional: Cooperation can build/solidify
relationships with sources. (Make request part of your
routine.)
Legal: Should you ultimately sue, your cooperation
can be relevant & helpful evidence.
But, note, there are advantages to formality…

38. The Right Foot: Your Request
Format:
It’s usually more prudent to submit in writing, even
when oral requests are allowed
 Some agencies require requests be in writing
• Only a writing establishes your legal rights, agencies’
legal duties
• Writing is helpful for tracking & evidence
Submit by email or registered mail
Get tracking number

39. The Right Foot: Your Request
Content:
Neutral Tone:
 Formal or Informal – or hybrid (be consistent on beat)
Scope:
 The more precise your request, the likelier success.
Still, broader requests leave room for negotiation.
Consult record-retention schedules for sense of
what’s available.
For databases, know the record layout, etc.

40. The Right Foot: Your letter
 Include “reasonable” description of records
 Address fees
 Make clear that you expect a response within the
statutory time limits
 Remind the agency that the FOIA requires the
release of all reasonably segregable portions which
are not themselves exempt
 Consider noting that you are aware of your
administrative appeal rights

41. The Right Foot: Reasonable
Description of Records Sought
 A “reasonable description” is one that “enable[s]
a professional employee of the agency who [is]
familiar with the subject area of the request to
locate the record with a reasonable amount of
effort.” H.R. Rep. No. 93-876 (1974) at 6.

42. Does this request contain a
“reasonable description?”
 All correspondence, documents, memoranda,
tape recordings, notes, and any other material
pertaining to the atrocities committed against
plaintiffs, including, but not limited to, the files of
various government offices.

43. No.
 See Mason v. Callaway, 554 F.2d 129 (4th Cir.
1977) (broad, sweeping requests lacking
specificity are not permissible).

44. What about this one?
 A request to the IRS for: 1) all files indexed and
maintained under my name or social security
number; and 2) all documents containing my
name.

45. No.
 See Keese v. U.S., 632 F. Supp. 85, 91 (S.D.
Tex. 1985) (“[r]equests for all documents
containing a requester's name are not
reasonably specific as required by the FOIA “).

46. Let’s fix the Mason request
 Original:
“All correspondence, documents, memoranda, tape
recordings, notes, and any other material pertaining to
the atrocities committed against plaintiffs, including, but
not limited to, the files of various government offices.

47. The Right Foot: Expedited?
• FOIA requires expedited processing if requester
shows “compelling need.”
• Typically granted if health/safety at issue, or if
requester is journalist with urgency to inform the public
about an actual or alleged governmental activity.*
• Agency must grant or deny request for expedited
processing w/in 10 days.
• If an agency grants expedited processing, it will
take the request out of order.

48. The Right Foot: Expedited? cont.
Content of Request:
Describe the circumstances you feel warrant
expedited processing;
“Certify” to the agency that the reasons you
give are true (the statute allows agencies to
require certification).

49. Notes re. fees
 Media (and other requestors seeking records for
non-commercial use) are exempt from FOIA
search & review fees
 Request itemized breakdown of estimate
 Consider fee waiver request
 On-time-or-on-us: fed government cannot
charge for duplication if documents are tardy

50. To request fee waiver:
 Agencies have discretion to grant full or partial
waivers.
 Agencies are more likely to waive fees if they
determine that release of the records would
benefit the general public.

51. Tracking
 Keep careful track of your request in the ordinary
course of business
 Consider a spreadsheet
 Track:
 When requested
 What requested
 Of whom requested
 When response due
 All communications (notes of calls)

52. Resisting the
Pushback
What do when agencies resist

53. Typical Issues
 Partial or full denial of request;
 Study the exemption cited!
 Inadequate search;
 Untimely response;
 Excessive fees;
 Denial of a fee waiver request;
 Denial of a request for expedited processing.

54. Typical Issues, cont.: Untimely
 Untimely
 Fed agencies routinely violate 20-day deadline.
 Note: An agency can take an additional 10 working
days to make its determination under “unusual
circumstances.”
 Clarification exemption: Agency may stop the clock
one time.
 Note: If an agency blows deadline, can go straight to
court.

55. Pushback Step 1: Informal
 Negotiate
 In writing is prudent (email works). But consider
calling. (Take notes.)
 Can be helpful whether it’s productive.
 Mind your relationships.
 Write a story (re. public’s right to know).

56. Pushback Step 2: Administrative
Appeal
What can you appeal?
Denial (full or in part);
Adequacy of search;
Failure to issue a timely response;
Excessive fees;
Denial of a fee waiver; and/or
Denial of expedited processing.

57. Appeals
 Appeals are made to the head of the agency
involved (e.g., the attorney general or the
secretary of defense).
 If possible, file your appeal within 30 days after
the denial, even though agencies generally
permit a longer time to appeal.

58. Content: What should be in my
appeal letter?
 Identify yourself;
 Identify the specific FOIA request made;
 Identify the specific FOIA action you’re appealing;
 Note you expect a reply w/in 20 business days of
receipt, as required by law;
 Request a list of withheld documents covered by the
request, and which exemptions are claimed;
 Offer to discuss (ideally via email) your request and
appeal with the appropriate agency representative.

59. Appeal, cont.
Appeal officer may:
Grant (all or part);
Deny (all or part); or
Extend time limit by up to 10 days if
 Voluminous records must be searched,
 Records must be retrieved from various offices, or
 Several agencies must be consulted.

60. Pushback Step 3: OGIS

61. Pushback Step 4: Lawsuit
When can you sue over FOIA*?
If no response to request w/in 20 days;
If appeal denied; or
If appeal not responded to w/in 20 days.
* Often, when you’re allowed to sue and when it makes sense to sue are
two different questions.

62. Pushback Step 4: Lawsuit
 Offer to settle first? FOIA litigation can be slow &
clumsy.
 Beware: bad facts lead to bad law.
 Filing a complaint in federal district court brings
financial expenses, but sometimes it’s a relatively
inexpensive and simple step.
 If you can demonstrate need for prompt
consideration, you can ask the court to expedite. But
that’s often a tough sell.

63. Also, consider filing a Motion for
Vaughn Index:
Motion: formal request the court order the agency
to provide an index describing the documents it
withheld & the justification it claims for each piece
of info. RCFP sample:
Plaintiff (your name) moves this Court for an order requiring Defendant (name
of agency) to provide within 30 days after service of the Complaint in this
action, an itemized, indexed inventory of every agency record or portion
thereof responsive to Plaintiff’s request which Defendant asserts to be exempt
from disclosure, accompanied by a detailed justification statement covering
each refusal to release records or portions thereof in accordance with the
indexing requirements of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973),
cert. denied, 415 U.S. 977 (1974).

64. Lawsuit
• If you win, a judge will order the agency to
release the records and might award you
attorney’s fees and costs
• Some state laws permit penalties

65. Get Help
Resources for Journalists

66. Resources
Journalism Resources, e.g.:
•Reporters Committee for Freedom of the Press
•SPJ (also, state chapters’ resources)
•IRE tip sheets
•NFOIC
Others
•Governmentattic.org
•Data.gov
See Our Tipsheets

67.  Questions?
Angela Galloway
Davis Wright Tremaine LLP
1201 Third Ave, Suite 2200
Seattle, WA 98029
(206) 757-8274
angelagalloway@dwt.com