FOIA a bad search engine, but use tactics to speed it up

I ran across a funny graphic posted by blogger Edward Vielmetti on (See posting of his FOIA Friday blog) playing on “Google classic.”  Edward then lists great tips for getting public records, with my favorites (including some of my own input):

1. Get the information through other means if you can – FOIA is often the slowest possible way to get information. Sometimes it’s already posted online, or an official might be able to help you get it. Journalists have learned to get information through other means than FOIA, likely resulting in the fact that only 5 percent of FOIA requests are submitted by journalists.

2. Know what you want before you ask. The more specific you can be the better.

3. FOIA is expensive. Redaction costs, search fees and copy costs can make information retrieval spendy. Make sure to ask for a waiver if you are gathering information with a public purpose (as a journalist, researcher, etc.). If the agency doesn’t respond within the statutory time, get your copy fees waived.

4. Too many people give up. Few people appeal denials, but often (as much as a third of the time, according to one study), a quick appeal letter can get you some or all of what you asked for. See RCFP for a sample appeal letter.

5. Get to know people. Develop relationships with people within an agency to speed things along. Treat people with respect and courtesy.

Talk softly, but carry a big open records law

Recently I did a Q&A with the Poynter Institute about The Art of Access and I mentioned the part of the book that talks about some experiments I did on effective request letters. Which works best – friendly or threatening? Honey or vinegar? In the Q&A I explain that the threatening letter results in greater response, greater compliance, faster response and lower copy fees. Odd, eh? I certainly didn’t expect that before doing my experiments.

The Poynter posting generated some discussion on listservs as people debated what works best for them. Some thought you are better off being friendly. Others said you should be tough. My 2 cents: Do both. Always be polite and friendly (I like doing the Columbo thing), but when asked to submit a records request make sure to cite the relevant statutes and case law, as well as reminders of penalties for noncompliance. Only threaten litigation if you have hit a roadblock and intend to actually sue. Label the request “PUBLIC RECORDS REQUEST” up high so they know, and make sure it gets to the right person. The research indicates that authority always wins over liking, but there’s no reason we can’t do both.

Why do we call it a “request”? Why not an “order”?

Mark Weiler, a doctoral candidate at Simon Fraser University, sent us an e-mail the other day asking why  public records requests are called “requests.” Why do we refer to “requesters”? That’s a great point!

After all, when we go to a library to pick up a book that we are entitled to, we wouldn’t “request” the book. We wouldn’t ask a librarian, “May I please check out this book?” and then await an answer. We talk about checking out books, or “taking” them from the library, because we all assume that our taxes paid for the books and they are public for anyone to check out. So if public records are paid for and are legally disclosable, why do we have to “request” them? Certainly, some records are not disclosable for necessary reasons (national security, privacy, etc.), but that does not change the nature of acquiring records. Calling them “requests” is polite, but it also implies the idea of citizen submission to the government, but isn’t our government accountable to the people? Aren’t the people in charge?

So what’s a better term? FOI order? FOI directive? Should we refer to “patrons” instead of “requesters”? I like the sound of, “the citizen submitted a records order to the school district for expenses related to the new high school construction,” better than, “the citizen submitted a records request to the school district asking for expenses related to the new high school construction.” Any  thoughts or suggestions on wording?

Request text messages, Twitter, Facebook discussions

State officials around the country are trying to figure out how to handle public officials’ discussions via Twitter, Facebook, texting and other electronic devices. If officials are discussing public business then those messages are public records.

Check with your government jurisdictions to find out whether they are recording Blackberry messages and other electronic communications. If they aren’t, then they should. A good starting point is to ask for e-mail messages of the major executives, such as the city manager or mayor. Then when you get to know the computer technicians and they start getting used to you, ask about other officials’ communications. Do they use a Blackberry or text on a cell phone? Ask for those communications (e.g., the incredible coverage by the Detroit Free Press based on text message records that sent the mayor to prison). Then move from there. Do they Twitter? Discuss issues on Facebook? Make sure that the public’s business is conducted in public.

Welcome to The Art of Access!

Thanks for visiting our site! We hope you will find the information about accessing government documents helpful in your reporting and daily life. Check out the FOI resources above as well as the tips to the left, sorted by beat topic and chapters in our book. If you have any thoughts or suggestions let us know!

– David Cuillier and Charles Davis