FOIA Letters and Plain Writing

This is an excerpt from an actual FOIA appeal response letter:

Dear [name redacted],

Reference is made to your letter to the [agency]…regarding the above referenced file. Through your letter you appeal the determination made…that certain records responsive to your request (or portions thereof) are exempt from release under the Freedom of Information Act (FOIA).

The information pertinent to your appeal has been reviewed.  Based upon this review, it has been determined that no additional information may be released to you.

… say what?

It’s no secret that we at OGIS are plain writing enthusiasts. As you may already know, the Plain Writing Act of 2010 went into effect in October 2011, and agencies government-wide are busy reviewing agency websites and other written communications for plain language and training employees who deal with the public. Unfortunately, it appears that plain writing fever has been less contagious in some agency FOIA shops than we had hoped. We’ve reviewed hundreds of FOIA response letters, and unfortunately, not many of them are plainly written. So why all the complicated letters? We have a few theories:

• FOIA is complicated. This is certainly true — the FOIA process is a product of bureaucracy, and bureaucracy is anything but simple. But complicated phrases and jargon only lead to more confusion.
• Nobody likes to deliver bad news. Fees, exemptions, delays — every day, FOIA professionals must tell requesters things that they don’t want to hear. Talking around an issue by using extra words does not make that bad news any easier to take.
• The buck has been passed. When a writer writes in the passive voice (as I just did), he or she hides the subject who is performing the action. For instance, it is more likely that a FOIA response letter will say “your appeal is in process” than it is to say “your appeal has been sitting on my supervisor’s desk for three weeks.”
• Legalese is the lingua franca of the federal government. FOIA professionals often tell us that their attorneys are reluctant to make letters more readable. While we certainly understand that every word counts when it comes to legal matters, it is usually possible to simplify even the most complex legal arguments.

We’d like to help improve FOIA letters. Agencies, please send us your templates — we are happy to make suggestions to make them more readable. We are even willing to discuss changes to your templates with your agency’s attorneys. Requesters, if you have examples of FOIA letters — bad or good — that you would like us to see, please send them to us.