How to do it

The statute and its regulations say that an agency must follow certain procedures in responding to a FOIA request. Although no specific format or language is required in the request letter, you should, at a minimum:

• Mention FOIA or the Freedom of Information Act.
• Describe the records requested carefully, perhaps splitting them into sections from most specific to least.
• Agree to pay the required fees up to a specified amount.

Most FOIA appellate authorities want to see an appeal written in clear, simple language with a statement of why the original decision was incorrect. While legal arguments are helpful, they are not essential.

Although in court a mistake can be terminal because the exact case can’t be brought again, FOIA decisions have little or no precedential value. A mistake can be rectified.

Many exemptions cited by agencies can be appealed using common sense. For example:

• Agencies sometimes deny the release of records by invoking national security with the b(1) exemption. These are often based on unfounded assumptions as to whether the record is currently and properly classified, perhaps because it was classified years earlier and never reviewed thereafter. To appeal this exemption, you can question whether the document was reviewed for declassification. Or, as an alternative to FOIA, you can request a Mandatory Declassification Review.
• Certain records which previously fell under certain exemptions, like the so-called b(2)-low or b(5), are now generally releasable under Attorney General Reno’s 1993 FOIA guidelines, unless foreseeable harm will occur through release.
• When an agency has denied an entire record or lengthy set of pages, the requester can appeal because the agency failed to break down what it could release — down to the paragraph or sentence level if necessary. An agency is required to provide "reasonably segregable portions" or a document.

Some agencies process requests in a centralized manner through one office. In other agencies, each office or department processes the request itself.

The people in a central FOIA office are not always familiar with the requested records or unsure where to refer the request. In addition, agencies frequently fail to send copies of a request to all offices that may have responsive records. Thus it may be necessary for you to file requests in each of these offices.

The Department of Justice distributes a partial list of central FOIA offices in issues of its FOIA Update newsletter, which is also posted on the Internet. This publication disseminates legal guidance to FOIA offices, but is also useful to requesters. Remember, though, whether it’s in a directory or not that almost any federal government office — including regional offices — is subject to FOIA.

FOIA is often a bargaining process. If necessary, leave yourself some bargaining chips in the original request.

FOIA offices periodically report on the number of partial and full denial decisions issued each year. Apparently, partial denials appear more administratively palatable to management than full denials, so there may be an incentive to provide you with some information even if it is less than complete.

Some requests are considered "difficult." These include those records that may be embarrassing to the agency, those that other components of the agency are reluctant to release, or those that require detailed review.

This can be turned to your advantage. File your "difficult" request between (but in the same letter as) two more difficult requests, making it appear easy in comparison. The agency may be willing to negotiate your withdrawal or rescoping of the more difficult requests in exchange for prompt processing of the middle one.

In addition to gathering basic documents, FOIA can be used:

• To request agencies’ strategic plans, annual reports, committee or board meeting minutes over a period of time.
• As a bargaining chip to encourage the public release of documents.
• To force a policy decision when no administration policy statement has been forthcoming. If one requests all documentation on a sensitive matter, the request is likely to receive high-level attention.
• To bring a complex or contentious matter to the attention of senior officials, as it is those officials who must sign an appeal decision.

This way, one denial turns into 50, which can force the agency to reconsider. This works best when the agency receives several requests at once rather than scattered over a long period. This can also be used to get an important document more quickly, as more requests can increase the priority of a request.

The FOIA case log

A FOIA case log lists all requests received by an agency each year. Most agencies maintain such a log, usually in a spreadsheet, computer database, or handwritten log.

The case log not only shows who else is interested in and requesting records from an agency, but lists the subjects of the records being requested. Using these records, a requester can learn from the mistakes and successes of requesters who have gone before.

Once you receive a log, you might request copies of request letters, the response letters, and the first 100 pages of the records provided to each requester.

Be nice

Requesters should try to make things easier for the FOIA office whenever possible. Here are some ways to write requests that do it:

"I request a copy of ALL meeting minutes for the Board for the past three years. However if the Board meets more often than 4 times per year, you may send me the meeting minutes from the past two years only."

"I request a copy of the full report on X. However, if this will result in more than 500 pages, you may send me only the first 100 pages and the last 100 pages of the report, to include the table of contents and references."

"Please send me a paper copy of the requested record. However, if the same data is available in electronic form or microform, please send me a disk or fiche instead if it will be less expensive."

If you make things easier for the FOIA officers, they may make things easier for you.

In fact, it is already getting easier. I have observed, based on case logs, that things have been improving in most agencies over the past five years. Written correspondence from FOIA offices is becoming more useful. Unacceptable case backlogs are being reduced, and in many cases eliminated. In most agencies, delays have been reduced to a reasonable time. Some agencies, even larger ones, such as the Department of Energy, Nuclear Regulatory Commission, and the Federal Reserve Board pride themselves on quick response times.

FOIA and the several other open government laws are becoming ever to those who know how to use them. If a reporter can file early enough, it can be one of the his or her best friends. But the stigma of the slow and laborious process will be the hardest obstacle to tackle.

Ravnitzky, a second-year law student at William Mitchell College of Law in St. Paul, Minn., is a free-lance writer. He is writing a book on the FBI files of famous Americans.