Panelists Offer Tips and Tricks for Navigating Federal FOIAs

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FOIA Fest takes place virtually Feb. 24-26

By Rylee Tan

Knowing how to file a state FOIA is one thing but seeking public records on the federal level presents an entire new set of challenges, according to a panel at FOIAFest 2021.

Speaking Saturday morning, two attorneys and an Associated Press editor walked listeners through some of the potential pitfalls in a session moderated by Chicago Sun-Times social justice/wage-gap reporter Elvia Malagón, 

FOIAFest keynote speaker Ron Nixon, global investigations editor for the AP, started things off with some advice: go on the offensive with FOIA.

Knowing what kinds of records federal agencies have is a crucial step to crafting a FOIA, Nixon said. Reporters can inspect agency FOIA logs — which show past and present requests for public records — to see what’s been approved and denied, and use it to their advantage. 

Even record retention schedules, forms agencies fill out for how long they have to keep records, can be used to narrow a FOIA request and make sure it gets the job done.

Just remember, federal agencies are given 20 business days to respond to requests, instead of five days at the state level in Illinois, so plan ensure your process is in synch with the information you hope to receive.

One tool for journalists navigating the depths of federal FOIAs for the first time is the FOIA Wiki website, said Adam Marshall, a senior attorney at the Reporters Committee for Freedom of the Press. The site provides a place for reporters and members of the public to share tips and strategies.  

But media attorney Alexandra Perloff-Giles wants reporters to consider, “FOIA is a piece of the reporting process, not a standalone endeavor.”

Journalists have to realize that agencies have no obligation to make records, only to give you records that already exist, and even then there are some important exemptions, Perloff-Giles said.

Knowing what you’re looking for, and knowing where it’s kept, can be crucial to crafting the perfect FOIA. But reporters should remember it is human officers reading FOIA requests, so describing records in the way you would speak to a real, live human being can go a long way.

And when you don’t get a response, get on the phone.

You can negotiate with the FOIA officer to narrow the scope, file an administrative appeal within 90 days or file a lawsuit, Perloff-Giles said. 

But lawsuits are a double-edged sword, Marshall said.

“Filing litigation sometimes can be helpful, but also can be the start of a very long and protracted process.”