- Jennifer Peters
More and more journalists are relying on the Freedom of Information Act (FOIA) to enhance their reporting and gather valuable information for the public. But the 50-year-old law remains one of the most misunderstood elements of journalism, both for the public and for news professionals. So we’ve broken it down – with help from FOIA expert Jason Leopold, senior investigative reporter for BuzzFeed News – to make sure you have all the information you need to use FOIA to maximum advantage.
Everyone in journalism knows what FOIA is, right? The law allows citizens — whether journalists, corporations, or members of the public — to request records of public interest from government entities. That means you can ask for the president’s emails, your city council’s internal memos, or NASA’s PowerPoint slides. You can ask for anything. (Agencies can and do deny requests for various reasons – see below for more on this.)
“If you want to find out what’s going on behind the scenes of a certain agency that you’re covering, ask for the last 10 emails that someone sent,” Leopold advises. “Let’s say it’s the police chief. Give me the last 10 emails that she sent. You can make smaller requests. Sometimes that can serve as its own tip sheet. If you make that narrow request, and it’s only a month’s worth of letters, you can get an inside look into what an agency is asking about. Maybe they’re asking about a program you’ve never heard about, and there you go, there’s a tip for you on what to follow-up on.”
“It’s also a matter of getting into the habit of filing the requests,” he continues. “If you read a news story by a competitor and it mentions a memo, file a request for that memo. What I often do, and what I recommend that reporters do, is look at the FOIA logs. Get into the habit of reading those logs and see what other people are asking for, particularly other reporters. You can even piggyback on those requests.”
But don’t expect to get what you’re asking for. While FOIA lets you request records and requires that the government respond to your request, there is no guarantee that you’ll get what you’re asking for. There are still records that the government has the right to withhold, typically for reasons of security and classification. So, simply submitting a request may not result in success.
That said, there are a number of ways to improve your odds of getting the desired documents, as Leopold explains. “One [way] is to ask for expedited processing. Tell the government agency you need these records now because it’s urgent that you inform the public,” he says. As a journalist, you have a proven need for records that are for the public good, and you need to push for those records.
That said, Leopold strongly advises against using FOIA requests to go on a fishing expedition. While you certainly could do that, legally, it would not only be a waste of your own time in submitting requests, but those broad, unnecessary requests would add to the already overwhelming backlog, slowing down the process for everyone.
Once you’ve filed your request and asked for expedited processing, you wait. Often, as Leopold has seen firsthand, the records you get back are redacted beyond recognition. “Here’s a great example: In 2015, the Federal Trade Commission sent me some records related to, believe it or not, the implementation and their views on the new Freedom of Information Act law, and I think it was 30 pages, heavily redacted,” Leopold says. “So I appealed it. I said, ‘I think this is outrageous. Go do another search and unredact some of this information.’ And six or seven months later, they sent me 900 pages.”
So, Leopold says, if what they sent you isn’t enough for you to use in your story, “Appeal. Always appeal. Yes, it’s tedious, but it’s worth it.”
And if your appeal isn’t successful? Leopold says you can sue, should you wish to do so.
“[Newsrooms may be concerned that suing is] going to cost hundreds of thousands of dollars, and that’s not true,” he says. “We’re not going after the drone memo [or] the targeted killing memorandum, where it would be a lengthy legal battle to obtain this.
“What people also need to understand is that journalists don’t make up the vast majority of FOIA requesters. They are not the ones who are filing all the requests. Corporations, businesses, lawyers — they make up the vast majority of FOIA requests that are being filed.”
“As a journalist, it’s urgent for me to inform the public [of these records]. So I file the request, I file the lawsuit [if needed], and within six months, I have a bunch of records, and the overall cost is say, $5,000. Which then can be recouped through attorney’s fees.”
And if even a lawsuit doesn’t get you what you wanted? Leopold says don’t give up.
“I don’t always get a story out of the documents. Sometimes they’re too old,” he tells us. “But I will still share the fruits of the labor, whether it’s a document or letter, usually on Twitter, just to show that it exists. It’s almost part of our [FOIA] support group, showing what it’s like out there.”
For more information on your state’s sunshine/freedom of information laws and other FOIA resources, you can visit the National Freedom of Information Council and the Sunshine in Government Initiative.
We’ve also created a helpful infographic to help you and others in your newsroom remember what steps are required and what resources are available to reporters: