Transparency ire13

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Transparency: Getting past "No" - IRE 2013

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Transparency ire13

  1. 1. TALKING THROUGH FOIA PROBLEMSTALKING THROUGH FOIA PROBLEMSDavid Jackson, Reporter, the Chicago TribuneDavid Jackson, Reporter, the Chicago TribuneReach 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 expediterecords release.
  2. 2. • Be sure your FOIA request is going to the right official.• If you cannot reach the FOIA officer directly to confirm,contact the agencys general counsel, the press officeror the head of the agency.• If the agency does not immediately respond, file yourFOIA but quickly follow up to ensure it got to the rightplace. Add: "Please contact me immediately if thisFOIA presents any undue burdens or problems."
  3. 3. • Prior to filing, describe your request.• Ask: "Have you handled this type of FOIAbefore? ... Have other people sought this sortof information in the past? Did any particularproblems crop up? ... Is there anything Ishould know in advance that will make yourwork easier and get me the records faster?"
  4. 4. • Try to get a concrete picture of what is entailed inproducing the records.• Some production burdens can be eased or avoided.• Ask if the agency has suggestions that would expediterelease and consider any points they make.• When redaction is not the issue, try to collaborate or easethe load: "Can I come over and look through the boxesbefore you go through the trouble of copying them?"
  5. 5. • Resolve cost issues upfront.• Ask: "Does your agency charge fees for theirsearching, retrieval and copying? If I request afee waiver, should I include that in the FOIA ordoes that request have to be madeseparately?“
  6. 6. • Ask the FOIA officer if there is any terminologythat would make the request easier to fulfill.• If you remain uncertain, file a request seeking"records sufficient to show..."
  7. 7. • Bird-dog any request you file. Make it clear that youreaware 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 ofphone conversations: "As we just discussed . . . . "• Some FOIA officers appreciate the chance to share theirexperience or expertise, and are justifiably proud of theirpublic service. Express thanks when thats appropriate.
  8. 8. • Before filing an appeal, try to challenge anydenials in a conversation with the FOIA officer-- or with the agency PIO, general counsel orchief. A dialogue may resolve obviouslyunfounded exemptions.
  9. 9. • Even if youre genuinely angry, stay off yoursoapbox.• Approach government officials as professionalcolleagues and focus on resolving concrete,technical issues.
  10. 10. • When denials do not include a specific basisfor each exemption, explain that you areentitled to a factual, reasoned basis for anydenial.• Explain that the lack of specificity may begrounds for an appeal or legal challenge thatcould overturn the denial.
  11. 11. • Evolving personal privacy laws haveheightened the reluctance of governmentofficials and undermined journalists accessrights. Try to determine if the requestedrecords contain specific data fields that youlive without, and how much work redactionentails.
  12. 12. • Make a forceful public interest case for release of therequested records. Explain specifically why in this casethe requested records are:• a) meaningfully informative about governmentoperations;• b) "likely to contribute" to an increased publicunderstanding of an important topic; and,• c) not already in the public domain.
  13. 13. • Explain that you are going to write about theagencys denial -- if indeed you intend to do so-- and say you need a quote or interviewexplaining the denial.
  14. 14. • Even as your appeal is pending, file new FOIArequests for vital and gettable parts of theinformation. Now that you understand whatthey arent willing to provide, go back tosquare one and think about what else youmight request and get.
  15. 15. • When you encounter unwarranted hostility orillegal obstruction, your job is to represent thepublics right to their records, and to do so in away that will stand up in court and in the high-stakes court of public opinion. . . .
  16. 16. • Observe the highest personal and professional standards asyou interact with government officials.• Act as if a tape is being made of every word you utter andevery deed you do. Conduct yourself in a way that wouldmake your newsroom and readers proud.• Keep your eye on the ultimate goal: publishing informationthat is held by the government agency but belongs to thepublic.• And keep copious notes!
  17. 17. Jack Gillum, APJack Gillum, AP
  18. 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 holdingrecords back. The nine exemptions:
  19. 19. Averting problems from the start• Be as specific as you can. Asking for “all emails sent toor from Deputy Undersecretary John Jones since thebeginning of time” will likely set your request backmonths -- 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’reseeking may be at another agency, with potentiallymore-promising results.• Give a good reason why your request should beexpedited. Just being a member of the press isn’tenough, especially in light of some agency regulations.
  20. 20. Dealing with delays• Stay on top of your request. Federal agencies have 20working days to respond to your FOIA. A friendly call tothe FOIA office doesn’t help.• Ask for documents on a “rolling basis.” This preventsthe FOIA office from waiting until they have everythingresponsive before putting it in a big box or on CD. Askingfor your documents may also slightly speed up copyingdelays.• Be nice . FOIA officers have to deal with a lot ofrequests — most of which are not from journalists, andsome are from folks who think Apollo 11 was staged inHollywood. So, be courteous. A handwritten note to avery helpful FOIA officer couldn’t hurt.
  21. 21. When things go wrong• Push back. The law allows a requestor to appeal. Sometimes, the FOIAofficer either didnt fully understand (or read) the letter. Clearly state yourreasons under the law why your records should be released. (See theReporters Committee guides at rcfp.org).• Go to OGIS. The Office of Government Information Services is a nascentagency in the National Archives charged with, among other things,mediating FOIA disputes. You should administratively appeal your requestfirst before going to them.• Go nuclear if it’s really egregious. If an agency wants to charge you $50million, go to the press office and say this is fodder for a story. (It’snewsworthy if an agency is deliberately obfuscating your request,especially if the records are of public importance.) You might also get therecords pried loose in the process.• Sue the agency.
  22. 22. Stay up to date with caselawMajority opinion in Lake v. City of Phoenix (2009):“Arizona law provides that ‘[p]ublic records and othermatters in the custody of any officer shall be open toinspection by any person at all times during office hours.’Ariz. Rev. Stat. § 39-121 (2001). The City of Phoenix denied apublic records request for metadata in the electronic versionof a public record. We today hold that if a public entitymaintains a public record in an electronic format, then theelectronic version, including any embedded metadata, issubject to disclosure under our public records laws.”This means Arizona FOI requests can get all sorts of data!
  23. 23. Usual data excuses -- state or federal• “We can’t create a record for you.” This usually stems from literalreliance on statute. It really means something that stands to reason: Theycan’t create something that doesn’t exist. But asking for a column to beformatted differently — or encrypted to protect privacy — is different.• “It will cost you $28,298,109.” This common tactic usually conflates thelaw on paper copying fees, such as $0.25 per page. Calmly explain thatelectronic records don’t endure the same kinds of reproduction chargesas paper records, unless they’re using a 1972 mainframe. (That alonemight be a story.)• “It’s prohibited/private/super-duper secret.” Use the law to youradvantage. After all, they’re using it keep you from the records. Manystates have specific statutes or court-derived exemptions under whichrecords can’t be released. But exempt records often must be redactedand the remainder of the documents or records disclosed.
  24. 24. General tips for getting data• Work with IT folks. Yes, you may have to go through the frontoffice or the FOI officer at first to get the records. But getting accessto the system administrator will pay dividends. They’ll be resistantat first, but once you build a relationship with them, getting recordsshould be a breeze. Also helps when the PR folks think you’respeaking a foreign language (say, SQL).• Source up. FOI requests are just one way to get data anddocuments. If you cover an agency, make friends with people whohave access to data. They, at the minimum, could provide you withclues about where the data are stored.• Be persistent. This goes for reporting in general, as we all knowthat “no” is only a beginning. This also applies to filing recordsrequests regularly: The more you engage with an agency on public-records requests, the better.• Write about denials.
  25. 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. 26. Types of databases/docs to seekAim for digital records if you can!
  27. 27. Problems with paper documents
  28. 28. How did it turn out?512-4637525 Number Destination DuruAmt I`cIcph0nc: 512-463-7525GOVERNOR LINE ATT I [18:51:110 ISITX 1.2 $[1116 I (19:55:110 TX [1.6$[1113 I IIASKELL. TX $[1115 I IBROWNSVILLIFZ. TX [1.6 $[1113 Ilf[1I[!I16 :22;[1[1 CHRIS. TX I.1$[1115 I I l:23:[1[1 lh! (ZORPUSCHRIS. TX [1.7 $[1113 7 HOUSTON. TX711 $[1.34 I |f[I1Il11h HARLINGEN.TX $[1114
  29. 29. GOVERNMENTTRANSPARENCY:GETTING PAST "NO" WHENGOVERNMENT PUSHES BACK2013 IRE National Conferenceby Angela GallowayDavis Wright Tremaine LLP
  30. 30. Basic Concepts FOIA: All records of the agencies of the federalgovernment must be accessible to the public, unlessspecifically exempt. Nine categorical exemptions under FOIA law Generally, the federal statutory exemptions permit anagency to withhold access to agency records; theydo not require an agency to withhold. Still, in practice …
  31. 31. Basic Concepts: State State public records acts: Operate similarly in that they presume disclosureand specify exemptions. But there are majordifferences among state statutes and betweenthem and FOIA. Best advice: know your state. Sometimes provide better enforcement (e.g.,penalties in some states)
  32. 32. What we will cover1. Starting on the Right Foot: How to establish astrong position in case government resists2. Dealing with the Pushback:1. Negotiate2. Administrative appeal3. OGIS4. Court3. Get Help: Legal resources
  33. 33. The Right FootBolstering your legal rights fromthe first step.
  34. 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), whichdescribes agency functions). RCFP Open Govt Guide (http://www.rcfp.org/open-government-guide)Were the documents shared with a second agency?
  35. 35. The Right Foot: RCFP guidanceon state laws
  36. 36. The Right Foot: Choosing theAgency cont. Once you select a federal agency, check itsonline resources & FOIA policies. The policies usually identify the specific employeeresponsible for processing FOIA requests. Know the record-retention policy (for timing andglobal picture of what’s retained). Both the underlying law and the agency’s policy
  37. 37. The Right Foot: Formal orInformal RequestBenefits of informal approach:Strategic: Cooperation can save time/energy.Professional: Cooperation can build/solidifyrelationships with sources. (Make request part of yourroutine.)Legal: Should you ultimately sue, your cooperationcan be relevant & helpful evidence.But, note, there are advantages to formality…
  38. 38. The Right Foot: Your RequestFormat:It’s usually more prudent to submit in writing, evenwhen 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. 39. The Right Foot: Your RequestContent: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 ofwhat’s available.For databases, know the record layout, etc.
  40. 40. The Right Foot: Your letter Include “reasonable” description of records Address fees Make clear that you expect a response within thestatutory time limits Remind the agency that the FOIA requires therelease of all reasonably segregable portions whichare not themselves exempt Consider noting that you are aware of youradministrative appeal rights
  41. 41. The Right Foot: ReasonableDescription 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 tolocate the record with a reasonable amount ofeffort.” H.R. Rep. No. 93-876 (1974) at 6.
  42. 42. Does this request contain a“reasonable description?” All correspondence, documents, memoranda,tape recordings, notes, and any other materialpertaining to the atrocities committed againstplaintiffs, including, but not limited to, the files ofvarious government offices.
  43. 43. No. See Mason v. Callaway, 554 F.2d 129 (4th Cir.1977) (broad, sweeping requests lackingspecificity are not permissible).
  44. 44. What about this one? A request to the IRS for: 1) all files indexed andmaintained under my name or social securitynumber; and 2) all documents containing myname.
  45. 45. No. See Keese v. U.S., 632 F. Supp. 85, 91 (S.D.Tex. 1985) (“[r]equests for all documentscontaining a requesters name are notreasonably specific as required by the FOIA “).
  46. 46. Let’s fix the Mason request Original:“All correspondence, documents, memoranda, taperecordings, notes, and any other material pertaining tothe atrocities committed against plaintiffs, including, butnot limited to, the files of various government offices.
  47. 47. The Right Foot: Expedited?• FOIA requires expedited processing if requestershows “compelling need.”• Typically granted if health/safety at issue, or ifrequester is journalist with urgency to inform the publicabout an actual or alleged governmental activity.*• Agency must grant or deny request for expeditedprocessing w/in 10 days.• If an agency grants expedited processing, it willtake the request out of order.
  48. 48. The Right Foot: Expedited? cont.Content of Request:Describe the circumstances you feel warrantexpedited processing;“Certify” to the agency that the reasons yougive are true (the statute allows agencies torequire certification).
  49. 49. Notes re. fees Media (and other requestors seeking records fornon-commercial use) are exempt from FOIAsearch & review fees Request itemized breakdown of estimate Consider fee waiver request On-time-or-on-us: fed government cannotcharge for duplication if documents are tardy
  50. 50. To request fee waiver: Agencies have discretion to grant full or partialwaivers. Agencies are more likely to waive fees if theydetermine that release of the records wouldbenefit the general public.
  51. 51. Tracking Keep careful track of your request in the ordinarycourse of business Consider a spreadsheet Track: When requested What requested Of whom requested When response due All communications (notes of calls)
  52. 52. Resisting thePushbackWhat do when agencies resist
  53. 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. 54. Typical Issues, cont.: Untimely Untimely Fed agencies routinely violate 20-day deadline. Note: An agency can take an additional 10 workingdays to make its determination under “unusualcircumstances.” Clarification exemption: Agency may stop the clockone time. Note: If an agency blows deadline, can go straight tocourt.
  55. 55. Pushback Step 1: Informal Negotiate In writing is prudent (email works). But considercalling. (Take notes.) Can be helpful whether it’s productive. Mind your relationships. Write a story (re. public’s right to know).
  56. 56. Pushback Step 2: AdministrativeAppealWhat 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. 57. Appeals Appeals are made to the head of the agencyinvolved (e.g., the attorney general or thesecretary of defense). If possible, file your appeal within 30 days afterthe denial, even though agencies generallypermit a longer time to appeal.
  58. 58. Content: What should be in myappeal 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 ofreceipt, as required by law; Request a list of withheld documents covered by therequest, and which exemptions are claimed; Offer to discuss (ideally via email) your request andappeal with the appropriate agency representative.
  59. 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. 60. Pushback Step 3: OGIS
  61. 61. Pushback Step 4: LawsuitWhen 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 aretwo different questions.
  62. 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 bringsfinancial expenses, but sometimes it’s a relativelyinexpensive and simple step. If you can demonstrate need for promptconsideration, you can ask the court to expedite. Butthat’s often a tough sell.
  63. 63. Also, consider filing a Motion forVaughn Index:Motion: formal request the court order the agencyto provide an index describing the documents itwithheld & the justification it claims for each pieceof info. RCFP sample:Plaintiff (your name) moves this Court for an order requiring Defendant (nameof agency) to provide within 30 days after service of the Complaint in thisaction, an itemized, indexed inventory of every agency record or portionthereof responsive to Plaintiff’s request which Defendant asserts to be exemptfrom disclosure, accompanied by a detailed justification statement coveringeach refusal to release records or portions thereof in accordance with theindexing requirements of Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973),cert. denied, 415 U.S. 977 (1974).
  64. 64. Lawsuit• If you win, a judge will order the agency torelease the records and might award youattorney’s fees and costs• Some state laws permit penalties
  65. 65. Get HelpResources for Journalists
  66. 66. ResourcesJournalism Resources, e.g.:•Reporters Committee for Freedom of the Press•SPJ (also, state chapters’ resources)•IRE tip sheets•NFOICOthers•Governmentattic.org•Data.govSee Our Tipsheets
  67. 67.  Questions?Angela GallowayDavis Wright Tremaine LLP1201 Third Ave, Suite 2200Seattle, WA 98029(206) 757-8274angelagalloway@dwt.com

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