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Tip Sheet: FOIA Troubleshooting

While submitting an open records request to a state, county or local government may be simple, receiving a timely and appropriate response sometimes requires a bit of finesse and follow-up on your part. The worst-case scenario requires that you know the law and are prepared to invoke its authority when caught in the tangles of government red tape. Hopefully, it won’t come to that.

Here are some basic guidelines to help avoid open records delays from the start and tips on what to do should you experience unnecessary push-back.

Tip # 1:  Do your research first.

Get familiar with your state open records law. It can be daunting at first glance, but each state processes these requests differently. If you are informed, you are less likely to be pushed around by government bureaucrats with misinformation.

Look for answers to these key questions:
-Does your state specify how the request should be submitted? (writing, phone, in-person, etc.)
-Does your state have a required response time for citizen requests?
-What information is exempt from public access? (Look for a list of exemptions)
-Does your state distinguish between examining records and copying records?
-Does the law allow an agency to charge a fee for documents (copies, staff time, etc.) over a certain amount?
-If a request is denied, is the agency required to provide a reason? (The answer to this is almost always YES! Be sure to ask which exemption applies to your specific request denial.)
-If a request is denied, what is the appeals process?

Shortcut: Our Watchdog Wire state editors put together a breakdown of each state open records law for all of our state hubs. Check and see if your state is listed.

Tip # 2:  Choose your words.

A well-written letter or email submitted to the right agency may increase your chances of getting a satisfactory response and avoiding the headache of further correspondence. If you are unsure which agency you should be dealing with, call their Public Information Officer (PIO) to confirm. Their job is to be the public’s advocate on the issue and to help navigate the process. Not all of them share that view, but most are a good time-saving resource.

Shortcut: The best tool we can share is a FOIA letter generator established by the Reporters Committee for Freedom of the Press. You fill in some basic information– like which state you are filing in and what information you are requesting– and their online database does all the work. It will produce a professional letter that invokes the specific statutes in your state’s open records law. It’s THAT easy.

Tip # 3:  Get it in writing.

Even if your state law allows you to make requests over the phone or in-person, we strongly recommend you put your initial request in writing. Mail is OK but email is better because there is an electronic transcript of the whole request process, complete with date, time, and contact information. There is also less room for misinterpretation or “he-said, she-said” arguments when everything is spelled out in writing.

Tip # 4:  State your cost ceiling upfront.

Be sure to specify in the letter how much money you are willing to spend to acquire these documents. You want to communicate this in advance so you are not unpleasantly surprised when they foot you with a bill over $1,000. Most state laws deem that a “reasonable” fee can be charged when agencies are spending staff time on a lengthy request. If that fee is not defined, however, there is room for foul play.

Note: High fees can be used as a method to scare off citizens from pursuing information the government would rather keep hidden. Read about how Americans for Prosperity-Michigan was stalled and outrageously fined in its quest for truth. The story is still ongoing.

 Tip # 5:  Record all correspondence

Eventually, you may have to pick up the phone and inquire about the status of your request. When you do, be sure to keep detailed records of all phone conversations and visits to the office.  Be polite and respectful, but make sure they know you mean business. Take notes on who you spoke with, their title, time of day, and what transpired. If they give you a general timeline to expect a response, be sure to check back promptly.

 Tip # 6:  Technology is your friend.

In the 21st century, there is more than one way to “copy” a record. Think outside the paper box. Agencies may try to corner you into paying high fees for making “copies.” Offer to simply “examine” the records rather than copy them. Some states will allow you to come during general work hours and rummage through the documents yourself. If that’s not the case…

…be ready to offer the following solutions:
-Flash drive: Offer to pay for a flash drive or USB stick to copy the records electronically
-Digital camera: Offer to come in and photograph the documents in lieu of making copies. (You can even use your cell phone camera so it’s easy to upload onto Facebook or Twitter.)
-Portable scanner: You can buy one at Best Buy for under $50. This one requires a little more effort because you have to physically visit the agency and scan the records by hand. But we’ve met a few determined citizens who have tried it with success.

Note:  If you have a story of your own about avoiding high open records fees, share it with us and we will feature it on Watchdog Wire. E-mail us at Info@WatchdogWire.com  

 Tip # 7:  Ask for clarification.

If your request is denied, don’t jump to conclusions just yet. First ask the agency to clarify which exemption your request falls under as outlined by state law. Ask them to cite the statute and be sure to double check it. You may even want to seek legal counsel.

Tip # 8:  Create pressure through publicity.

Remember when we told you to document every conversation? Here’s where that information comes in handy. If you are being pushed around by a disgruntled PIO or other government worker, let the people know! Publish those e-mails and names on the Internet showing a well-documented case and timeline for unnecessary delay or denial. Be sure to link to the online bios of the employees you spoke with and mention them on social media as well. Ask your friends to help spread the word. When this pops up in a Google Alert in the agency press office, someone will take notice. You may even want to contact a local reporter to cover the story (or perhaps the Franklin Center). When it comes to public access and First Amendment issues, trust me–the media is on your side.

Note: If you have had a bad experience making an open records request, we want to tell your story. E-mail us at Info@WatchdogWire.com

Tip # 9:  Know when to appeal.

You CAN appeal a denied or severely delayed open records request–that is your right as a citizen. However, like any issue brought to the courts, it will likely cost you money. While a news agency may be willing to back up its reporter financially for any accrued legal fees, citizens can’t always take that risk. In some states, however, if you are successful in reversing the agency denial, the court will require the agency to pay costs and reasonable attorney fees incurred in the court action. Some will even award you an amount between $5 and $100 for each day that access to the records was denied. In short, be sure you know what your state law says before making the appeal.

 

Mary Ellen Beatty

Director of the Citizen Watchdog program. Contact me at MaryEllen@citizenwatchdog.com

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