Here's How You Can Ask the Government for Public Records
Nearly every government record is available to anyone, but trying to get that record can make a person feel like an enemy of the state.
Sometimes it’s as easy as filing a Freedom of Information Act request and waiting a few days for the records to arrive. Other times, the request turns into a months-long battle with federal officials.
The latter is the case too often, said Kenneth Bunting, former executive director of the National Freedom of Information Coalition.
“I do not think the bureaucracy at the federal level has its heart in the right place,” said Bunting, who is also the retired associate publisher of the Seattle Post-Intelligencer. The FOIA process “starts with an adversarial position, and that is unfortunate.”
On its face, the FOIA process seems easy enough. You send a written request for records to the agency you believe has those documents, including details on what you seek and which format you’d like.
It’s important to know that federal agencies are only required to release records that already exist. The agency will not create a new record or analyze data in response to a FOIA request.
Each agency has a FOIA liaison who assesses requests. An agency generally has 20 business days to respond to a request, although more complex requests may require more time. Federal employees rarely meet the legally mandated deadlines, Bunting said.
“There never has been and, I fear, never will be a 20-day response time,” he said. “That’s one of the many reasons why the drive to open government data is so important.”
Federal agencies must release records immediately unless they fall under one of nine broad exemption areas. Those exemptions include the arcane—geological information on wells—and the mundane, such as business secrets or classified information.
People need to do their homework before sending a request, said Patrice McDermott, executive director of OpenTheGovernment.org. First, she said, look at an agency’s website to see whether it has the information you want.
If the information can’t be found, it is important to be specific in a FOIA request, McDermott said.
“They need to really narrow down what they need,” she said. “If not, at best you’ll get a call asking you to narrow it down. They’re not going to give you everything about X.”
Agencies also may ask for payment for those records. A huge pile of documents may cost a huge pile of money. Some requesters, such as news outlets or nonprofit groups, can ask for fee waivers, but discounts are rare for individuals.
“Fees are always a big issue,” McDermott said. “You probably shouldn’t expect a fee waiver unless you’re going to share the information broadly.”
The results of a FOIA request can depend heavily upon the agency. Some agencies receive a relative handful of requests, while others are inundated and have a constant backlog.
The Department of Homeland Security, for example, started 2013 with nearly 38,500 pending FOIA requests and received more than 231,500 others last year, according to FOIA.gov. The agency had 65,676 pending by the end of the year.
In contrast, the Farm Credit Administration started last year with one request pending, received just 29 more in 2013 and had resolved all but one by the end of the year.
Even if an agency refuses to release records, that’s not the end of the line. A requester can appeal the decision to the same agency, a strategy that is rarely used but sometimes works.
“Most people don’t appeal,” McDermott said. “That is your right.”
McDermott sticks to the “you attract more flies with honey than vinegar” approach: Be nice to the FOIA liaison, and you’re more likely to get what you want.
She also believes there’s reason for optimism after some dark years. Agencies are putting more records online and chipping away at huge backlogs.
“There are real problems, and it’s far from perfect,” she said, “but there are signs of positive change.”