Freedom of Information Laws: Using Open Records Laws to Support Organizing Campaigns
“Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.” Attributed to Supreme Court judge and free speech defender Louis Brandeis.
Why use open records laws? Gather information about • policies Investigate executive actions • Reveal misconduct • Collect and interpret data • Contribute to public debate • Support organizing campaigns •
Who can file an open records request? • Individuals • Organizing and public interest groups • Media • Corporations • And many others!
What Government Components Can You Request Information From? Public records U.S. Dep’t of Justice requests typically N.Y. State Education Dep’t apply to Executive Los Angeles Police Agencies of Dep’t Government, such as: State and local public records requests also often apply to legislatures .
What Government Records Can You Request? Requests can target any records, such as: Decisions by government officials State and Local requests may Policies also provide for access to: Data Legislative records Communications (emails, letters, Transcripts etc.) Bills Voting records Maps Certain communications from Video & audio recordings legislators Records of Investigation Your own records with the agency
What Can’t Be Requested? Federal FOIA exempts: State and Local requests, while more liberal, may Federal Courts exclude: • Note: FOIA does apply to many administrative courts such as EOIR The Judiciary • Private records/ U.S. Congress • • correspondence of officials Note: FOIA may apply to some communications between elected officials and federal Always check your state or agencies local open records laws for the possibility that it may White House offices • allow for more access.
The Strategy of Your Request There are some key questions to ask before crafting the request, even if you know that things may change as request is processed. Do you want a long-term process to “net” a comprehensive set of documents? Or a quicker process that targets a narrower , smaller set of documents?
The Strategy of Your Request • Do you have the resources for a longer process? • Do you have resources if it goes to litigation? • How will the documents you receive be used? • Do you have a media strategy?
Do I Have to Pay? Fees & Waivers • While governments are typically entitled to charge for processing and copying your request, they set limits on amount charged per page. • Requesters can ask to be contacted if the page numbers or cost exceed a certain amount • FOIA and most state/local laws provide for fee waivers in certain circumstances
FOIA : Freedom of Information Act 5 U.S.C. § 552
Fees Under FOIA, 5 U.S.C. § 552 (a)(4) I. Limited to “charges If for commercial use: for search, duplication and review” If request made by Limited to “charges II. educational or for document scientific institution, duplication” (not or by a member of search and review) news media: Limited to “charges III. for document search If neither (I) nor (II) : and duplication” (not review)
Fee Waivers Under FOIA Federal FOIA will provide documents for free in these cases: Small Requests: For non-commercial requesters, if number of pages is below 100 pages or if search takes less than 2 hours. Public Interest Requests: The federal FOIA statute* provides for fee waivers where the “disclosure of the requested records is in the public interest because it is likely to contribute significantly to the public understanding of the activities or operations of the government and is not primarily in the commercial interest of the requester.” ALSO: Remember to check state and local laws and regulations for fee waivers and public interest provisions. * For specific information, see 5 U.S.C. §552 (a)(4)(A)(iii)
Timing Under FOIA 20 Business Days for Response : FOIA requires federal agencies to determine whether to respond to the request and to notify requester of determination within 20 business days. 5 U.S.C. § 522(a)(6)(A)(i). 10-Day Extension : FOIA permits agencies to invoke the right to an extend the determination/notification by 10 business days “in unusual circumstances.” 5 U.S.C. § 522(a)(6)(B)(i) State and local laws typically also require the government to respond within a certain period of time.
“Expedited Processing” 5 U.S.C. § 552 (a)(6)(E) FOIA provides that requesters can be granted expedited processing if: (I) requester “demonstrates a compelling need” (II) or in “other cases determined by the agency.” “Other cases” can include, for example, “imminent threat to life or physical safety of an individual.” See, e.g., 6 C.F.R. § 5.5 (DHS regs). Always check agency regulations for more detail .
Crafting the Request
Drafting the Request 1. Identify the agency For example, the Dep’t of Homeland Security or Dep’t of State, as well as any components of those agencies (such as ICE) or sub- components (such as EOIR). 2. Make the request for documents specific. For example: “We seek any and all records related to detention facilities’ compliance with ICE’s “Performance-Based National Detention Standards.” Remember that FOIA requires that requests “reasonably describe” the information sought.
Drafting the Request 3. Define the terms you decide to use in your request. This will help both you and the government identify what you are looking for. For example, “In this request, “Record” includes, but is not limited to, all Records or communications preserved in electronic (including metadata) or written form, such as correspondences, emails, documents, data, videotapes, audio tapes, faxes, files, guidance, guidelines, evaluations, instructions, analyses, memoranda, agreements, notes, orders, policies, procedures, legal opinions, protocols, reports, rules, technical manuals…..”
Drafting the Request 4. Specify that you seek both paper and electronic records. 5. Specify Format of Production It is important to specify how you want to receive your documents. Identifying a format like PDF, and also you might want to request data, like spreadsheets, in its original format. For example, you can use language like this: “Saved on a CD, CD-ROM or DVD; in PDF or TIF format wherever possible; electronically searchable text wherever possible; parent-child relationships maintained (i.e. attachments connected to email”)
Drafting the Request 6. Describe the requester. “Center for Constitutional Rights is a non-profit, public interest, legal, and public education organization that engages in litigation, public advocacy, and the production of publications in the fields of civil and international human rights….” 7. Include a request for a fee waiver. Make sure to explain why the statute/regulations apply. Ask that if fee waiver is denied, the agency contact you if fees are expected to exceed a certain amount.
Drafting the Request 8. Include request for expedited processing Explain why the public needs to know about this information immediately, and cite to any news articles, recent events or reports that help to demonstrate the urgency of your request. 9. Certify that contents of your request are true and correct, and provide contact information for where you want all correspondence and documents to be sent. This is important, especially because of the timelines involved for any appeals to an agency – you don’t want an agency sending responses or documents to the wrong person or address.
Filing Your Request
Initial Steps Send request by mail and email in a form that can be tracked . • Send one copy of the request to each agency and component you • are directing your request to. For example, you could send a copy to DHS, ICE and the FBI. Agency will typically alert you that request has been received. • Agency may contact you to ask you to clarify parts of your • request. Agency will likely alert you of any timing considerations (e.g. • invoking 10-day extension, determination of time needed) • Always keep copies of mail, emails and notes of calls and contacts with agency.
Administrative Appeal FOIA permits you to appeal any “adverse determination.” For example, if DHS responds to your request and states they searched and found few or no records, you can appeal that response. Or, if ICE tells you they are denying your request for a fee waiver and expedited processing, you can appeal that as well. If you choose to appeal, write the appeal to the agency that made the adverse decision within sixty (60) days . Agencies have 20 days to respond. (FN.) Make sure that all issues you want to appeal, including any full or partial denial of fee waivers, are included in the administrative appeal. If there is new information to be added, add it.
Agency Response: What to Expect • Agency will typically describe the documents it is providing, and what components they searched to obtain the documents. • Agency will typically redact or not provide “non-responsive documents.” • Agencies will “redact” any information that is “exempt” under federal law from disclosure.
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