Last week our Attorney Advisor, Sheela Portonovo, attended the 2018 Investigative Reporters and Editors (IRE) Conference to share best practices for successfully navigating the FOIA process. Below is a brief summary of the major issues with the FOIA process we regularly hear about from reporters (and others), and some of the tips she shared.
Issue 1: Delay.
We regularly hear from customers, including reporters who might be working on a deadline, who are frustrated by delays in the FOIA process. Unfortunately, long response times are all too common at agencies that receive a large volume of requests and at agencies that are struggling to respond to a backlog of old requests.
Tips to avoid delays:
- Do as much research as you can before filing your request. Agency websites and FOIA reading rooms/libraries contain numerous proactive and required disclosures. Referencing disclosures that are similar to what you are seeking may make processing your FOIA request faster. Research can also ensure that you are submitting your request to the correct agency.
- Contact the agency FOIA Public Liaison (FPL) or OGIS to help formulate your request. Agency FPLs can answer questions about the type of records the agency keeps, how they are kept, and possibly suggest ways of wording your request to speed up response times and help address fee issues. If you are not able to contact the FPL, OGIS can assist you with contacting the FPL and act as a liaison.
- Be specific in your request. Use the research you’ve conducted and conversations with the agency FPL and/or OGIS to be as specific as possible in your request. The more you information you can provide about what you are looking for, and/or where you believe the records may be located, the faster the agency may process your request.
Issue Two: Fees
Sometimes even highly-experienced FOIA requesters approach us with questions about FOIA’s admittedly complicated fee structure. FOIA allows agencies to recover some fees associated with searching for records and processing a request. However, agencies generally collect a very tiny fraction of their costs each year. Recent amendments to the FOIA further restrict agencies’ ability to collect fees if they miss processing deadlines (you can learn more about when an agency can and can’t charge fees here).
Tips for avoiding fee issues:
- Understand the difference between “Fee Category” and “Fee Waiver.” Fee categories are based on the nature of the requester. Fee waivers are based on the use of the information.
- Indicate the appropriate FOIA fee category when you file your request. The type and amount of fees differ depending on the requester’s fee category (see our easy-to-read chart for a complete breakdown). Most of the IRE attendees would qualify as a “representative of the news media” because they are gathering information of potential interest to a segment of the public, using editorial skills to turn raw material into distinct work, and disseminating that work to an audience. Representatives of the media are only charged duplication fees, and are entitled to the first 100 pages free.
- Discuss the scope of your request with the agency. In addition to helping you avoid delays, talking about the scope of your request and appropriately narrowing it to exclude records that are not of interest to you can help avoid fee issues. Also, the agency is barred from collecting fees if your request involves less than 5,000 pages and the agency does not meet processing deadlines.
- Apply for a FOIA fee waiver only if the records meet certain standards. Requesters must meet a high threshold for approval of a fee waiver or reduction in fees. Agencies should waive or reduce fees “if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.” 5 U.S.C. § 552(a)(4)(A)(iii).
We hope you find these tips helpful, and we look forward to continuing to work with requesters and agencies to make the FOIA process work.
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