Demystifying the Freedom of Information Act12 Sep 2018
by Jissel Becerra Reyes
Passed in 1966, the Freedom of Information Act (FOIA) was intended to strengthen American democracy by providing a tool for governmental transparency and accountability. FOIA has now existed for more than fifty years, and though it is not without its shortcomings and critics, it has now become a research method among journalists, attorneys, and members of the American public . Both a verb (‘What records will you FOIA?’) and a noun (‘I plan to request a FOIA on that’), FOIA requests are gaining traction as important steps towards access to information, a right that American citizens–and even foreign nationals–should know about and use freely.
What is the Freedom of Information Act?
As the FOIA.gov website states: “The Freedom of Information Act (FOIA) is a law that gives you the right to access information from the federal government. It is often described as the law that keeps citizens in the know about their government.”
Although this definition holds true, FOIA requests are much more powerful and encompassing than the definition implies. The reality is, the Freedom of Information Act law allows almost anyone to get access to publicly available records from virtually any agency or governmental body, particularly in the Executive Branch. These agencies can include cabinet departments, military departments, government corporations, independent regulatory agencies, among others.
What is the process of requesting a FOIA?
Depending on the agency, FOIA requests can be relatively quick and straightforward or complicated and dragged out. Moreover, a FOIA request could be free or cost money, and it could be as easy as writing a letter requesting information or as complex as filling out forms, online or via paper.
Regardless, it is this first step of preparing a FOIA request that sets in motion a FOIA process that is more important than that initial request. Researching the agencies from which one is requesting information (or the agency most likely to hold the desired information), following up on one’s request, and in some cases, appealing denials all constitute the FOIA experience, so, as FOIA experts at the National Security Archive and other organizations have expressed, knowing what to expect from the FOIA process is imperative.
The million dollar question though, how long a FOIA request takes, is difficult to answer. Legally, agencies have to respond to FOIA requests within ten days (a response could simply be an acknowledgement that the request was received). However, difficulties in finding the information you are requesting, or the agency’s simple refusal to give certain information, can cause delays or even denials. In the case of a denial, Nate Jones from the National Security Archive advises one to always appeal, as appeals frequently yield the requested information.
Regardless of whether an appeal is necessary, or if the results of a FOIA are different, the FOIA process looks very similar across FOIA requests. For example, MuckRock is a database of FOIA requests in various stages that stores correspondence and outcomes. For example, journalist Emma Best filed a FOIA requesting information regarding the New Jersey’s police monitoring of social media; she identified the agency to which she needed to send the request (the Newark Police Department), specified what she needed (records of social media monitoring policies and guidelines), and after corresponding with the Police Division, received the documents she requested. This case provides a relatively straightforward example of the FOIA process, but it is still useful in exemplifying how to craft a successful FOIA.
Who can file a FOIA?
FOIA requests can be made by anyone: an individual, a corporation, law firm, news organization, or public interest group.
The fact that virtually anyone can file a FOIA makes FOIAs a powerful tool for research and civic engagement. The use of FOIA by citizens and organizations has proven crucial in particular cases, like that of the shooting of Laquan McDonald, a black teen whose shooting by a Chicago police officer was captured on film and subsequently released because of a journalist’s FOIA request. Journalists all around the nation are frequently filing FOIAs to develop their stories, learning the ins and outs of the FOIA law and agencies in the process.
But journalists are not–and should not–be the only ones utilizing this open records law to its full use. For academics, especially historians, classification should not be a research-stopper–rather, it should trigger immediate interest. Why is the government holding certain information secret, and what does that information reveal that we do not know? If our history is to be written accurately, we will have to have all the records made available-–not just those a government department believes we should have.
And it’s getting increasingly easier to get access to those records via FOIA requests. MuckRock, a non-profit launched in 2010, assists in the process of writing and sending FOIA requests by providing sample request letters, contact information for public records officers, and by tracking agency responses. That organizations like MuckRock exist to ease the FOIA process speak to the importance of this law in ensuring that we hold the government accountable and access the information we deserve, whether it be for journalistic endeavors, legal cases, or most pertinent to Swarthmore students and faculty, academic research.
Further Reading: UNREDACTED: The National Security Archive Blog Requester’s Voice: Jason Leopold The National Security Archive: FOIA Basics “How to Break an Information Bottleneck?” Notes from the Field: The Art of Crafting a FOIA Request