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These FOIA Filing Tips May Improve Results

Sep 26, 2005  •  Post A Comment

By Michael Mansur

Special to TelevisionWeek



If there is one clear thing that can distinguish you as an “investigative reporter,” it may be this: You regularly file freedom-of-information requests.

Most reporters can fill their days by attending press events, interviewing sources or monitoring public meetings for the latest information. You can run such traps each day and produce many good stories.

But you will never set yourself apart as an enterprising reporter, an “investigative reporter,” if you don’t independently seek documents and data. And most often that requires filing with local, state or federal officials what’s become known as an “FOIA,” or a freedom-of-information request.

Ken Ward, the environment reporter at the Charleston (W.Va.) Gazette, says he feels a little less than whole if he hasn’t filed a records request in a week. Filing at least a couple FOIAs a month might be an attainable goal. On my beat-covering local government for The Kansas (Mo.) City Star, which sometimes involves an environmental story-I may file three to six information requests a month. Many of these are required because the local government wants that piece of paper in their files before they’ll produce the records.

Sometimes they also want it to be able to charge you fees for their time to run computer programs or search for the records.

Often I find that such requests produce data that public officials have never analyzed. Analyzing it yourself and producing a story will put you, not your sources, in control of the story.

What follows are a number of key points to keep in mind about filing freedom-of-information requests, followed by a sample letter offered by Seth Borenstein, who writes about the environment in Knight Ridder’s Washington bureau.

These tips come from me, Ward and other veteran reporters who have presented advice at journalism conferences, including the Investigative Reporters & Editors national conference.

  • Try to avoid filing an FOIA by obtaining the documents or data informally from the appropriate source. If they say you’ll need to file an FOIA, then say, “No problem. Who do I send it to? What document do I need to ask for?”

  • Be familiar with local, state and federal information laws, paying close attention to what is exempted and the procedures for filing and responding to a records request. For example, how many days does a public agency have to respond to your request? Under my state law, they must respond in three days, but that doesn’t mean they have to turn over anything that quickly. The Reporters Committee’s Web site contains the text of all state public records laws at www.rcfp.org/cgi-local/tapping/ index.cgi?function=browse. The Department of Justice Web site contains the text of the federal FOIA and maintains a running update of federal FOIA litigation.

  • When you interview sources, think FOIA. What document do I need to ask for? Or, how do you communicate with your staff? For years, one of the most valuable documents I regularly obtained was a monthly activity report in which every Environmental Protection Agency division manager reported on their activities to the regional director.

  • Check out the FOIA reading rooms. Most federal agencies have one. There they often post the most-requested documents or list records that others, including reporters, have requested. Lots of FOIAs related to a particular hazardous waste site, for example, may be a clue that much is happening or about to happen there. Also, consider requesting the list of all FOIAs or, even better, get to know the FOIA officer well enough that you can visit and see the list of what has been requested.

  • Think multiple FOIAs. If a waste site is under the jurisdiction of both state and federal regulators, FOIA both agencies. Often, I found, state officials redacted less than the federal agencies. Names, key sources and actions may be contained in one set of files but redacted in another.

  • Ask for a fee waiver when you make the records request. Most laws provide for a waiver of fees if the information’s release would be in the public’s interest. (See sample letter to EPA for what qualifies for a fee waiver.) Borenstein said requesting the fee waiver up front might save you weeks of time.

  • Copying fees probably will still be charged. So consider requesting to review the records before any copies are made. If you find that there are a large number of documents you will need to copy, consider buying a portable copy machine or a scanner.

  • Be sure to follow up on requests. Don’t let them wait you out; otherwise, the law will mean little. And be active with press organizations, including SEJ, in assuring that local, state and federal agencies adhere to the laws and refrain from weakening them.

  • Seek help from colleagues. Someone may have already obtained the document or may be having similar problems obtaining records from an agency.

  • Most importantly, use the FOIA option or the future may mean you won’t have it. Also, it’ll make your work stand out.

    You can also get further advice, boilerplate, wisdom and experience from the Reporters Committee for Freedom of the Press. Its guidebook, “How to Use the Federal FOI Act,” is available online. See especially the two chapters on fee waivers, “You may ask for a fee waiver” and “You may have to pay fees.” For further advice, contact RCFP’s Rebecca Daugherty (or anyone else) at 800-336-4243 or 703-807-2100, or email at rcfp@rcfp.org.

    Also, check out recent studies by media organizations on the response of public agencies in your state to records requests, as well as numerous state audits that have looked at compliance with state law governing open meetings and records. Several state audits have been completed in recent years.

    Finally, here’s a sample FOIA request, used with permission, based on texts used successfully by Seth Borenstein of Knight Ridder News Service:

    (submit on letterhead:)

    [Requester’s address block]

    Ms. Betty Lopez

    FOIA Officer

    United States Environmental Protection Agency

    1200 Pennsylvania Avenue: 2822-T

    Washington, DC 20460

    (202) 566-1667 FAX

    (202) 566-2147 via e-mail at hq.foia@epa.gov; ONLY ELECTRONICALLY

    [Date]

    Dear Ms. Lopez, I am [Name], reporter [or other job title] for [name of publication or outlet]. Pursuant to the federal Freedom of Information Act, 5 U.S.C. 552, I request access to and copies of the following materials: [Point-by-point description of documents requested, as specific and helpful as possible].

    As a news media representative I am only required to pay for the direct cost of duplication after the first 100 pages. As a news media representative, I ask you to please waive any applicable fees. In the following eight paragraphs I will underscore my reasons in response to your guidelines on fee requests. I understand that is a separate process than my FOIA request. So I ask that you initiate both processes simultaneously. In other words, please start processing the FOIA request itself as you are doing the fee-waiver request. In the event that you disallow my fee-waiver request, I pledge to pay the price of the FOIA request up to $[dollar amount, suggested not less than $250].

    Please notify me upon passing the $100, $200, $300, and $400 threshold if this is before a decision on fee-waiver request or if my fee-waiver is denied, however unwarranted that event may be. This paragraph should serve to authorize you to begin to accrue such charges, pending a decision on the fee-waiver request.

    Through this FOIA request I am gathering vital information on the activities of the taxpayer-funded EPA that is important to the public’s understanding of how its environmental protection agency spends public money and whether it is doing so in compliance with federal laws.

    Now, let me specifically address the six hurdles used by the FOIA for fee-waiver determination.

    1. The subje
    ct matter of the requested records must specifically concern identifiable operations or activities of the government. (Explain why you meet this test, even if obvious.)

    2. The disclosure should be “likely to contribute” to an understanding of government operations or activities. (Explain why you meet this test, even if obvious.)

    3. The disclosure must contribute to the understanding of the public at large, as opposed to the requester or a narrow segment of interested persons. (Explain why you meet this test, even if obvious. Description of your audience and its size is helpful here.)

    4. The disclosure must contribute “significantly” to the public understanding of government operations. (Explain why you meet this test, even if obvious.)

    5. The disclosure will not serve any commercial interest of me as an individual. (Explain why you meet this test, even if obvious.)

    Borenstein’s boilerplate: “My company will not likely sell a single newspaper more because of the disclosure. This is just a matter of a newspaper company fulfilling its public duty to ferret out the truth about the way government operates. In fact, the entire process will likely cost my company money.”

    6. The public interest in disclosure far outweighs commercial interest.

    Borenstein’s boilerplate: “First, as shown above, there is a massive amount of public interest. Second, as shown above, there is little if any commercial interest.”

    If my request is denied in whole or part, I ask that you justify all deletions by reference to specific exemptions of the Act and release all segregable portions of otherwise exempt material. I reserve the right to appeal.

    As I am requesting this information as a daily journalist and this information is of timely value, please contact me by telephone, rather than by mail, if you have questions regarding this request. My phone number is [phone number]. My e-mail is [e-mail].

    I look forward to your reply within 10 business days, as the statute requires.

    Thank you in advance for your assistance.

    Sincerely,

    [signed]

    [printed name]

    [job title]

    [organization or company]



    Michael Mansur edits the SEJournal and writes for The Kansas City (Mo.) Star. This report first appeared in the SEJournal. Ken Ward, Robert McClure, Joe Davis and Seth Borenstein contributed to this report.