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FOI: A Reporters Guide to Freeing Data & Documents

A REPORTER’S GUIDE TO UNLEASHING E-DOCS (A.R.G.U.E.)

When you file a FOIA request, the government must justify every field, case or cell it plans to withhold with a statutory exemption. Demand it – and then be prepared to argue! Here’s how you can build a fast, persuasive legal argument.

STEP 1: OPPO RESEARCH Listen on IRE RadioScreen Shot 2015-02-11 at 12.25.42 AM

FOIA.GOV has links to the FOI pages for each federal agency with information on where and how to send your public records request.

It also lets you see the most common exemptions deployed by each agency. You can use that information to prepare your argument ahead of time. Select the ”Data” tab at the top of the homepage. Select “Exemptions.” Choose an agency and create a report. For example, #1 exemption for USEPA is 5. DOJ & DOD, 6, followed closely by 7c.

STEP 2: LEGAL RESEARCH Listen on IRE Radio

You need to understand the exemptions — better than the FOIA officer does. Here are some helpful links unlikely to be in any but the most committed FOIA officer’s browser history: US Department of Justice Guide to the Freedom of Information Act  Provides an authoritative interpretation of each FOIA exemption, with case law and legislative history, chock full of language you can grab and quote. Who’s going to argue if the DOJ is in your corner? (Take a look at Exemption 6 for 100 ways to design a FOIA request or argument to combat the overuse of the privacy exemption.)  Also check out: http://www.justice.gov/oip/oip-guidance.html?#2013

US House Citizen Guide  This is Congress’s own interpretation of the exemptions it created. Not as in-depth as DOJ, but handy supplemental support with the House’s imprimatur.

Official Administration “presumption of openness” policy. Quote this verbatim and often.

Reporters Committee for Freedom of the Press Federal Open Government GuideAlways good to do a reality check on DOJ’s take on exemptions by comparing it to the more reporter-friendly RCFP. While quoting RCFP doesn’t have the same cache as DOJ in federal FOI officer circles, no need to say where you got that killer case law supporting release of the records you want.

 LEXIS/NEXIS publishes an annotated FOIA statute. So if the sites above aren’t helpful to your argument, look here for something they may have missed.

STEP 3: ARGUE Listen on IRE Radio

If the interpretations above are in your favor, QUOTE them.

If they are not, ask for the records anyway.

  • The FOIA officer may not know better.
  • An exemption means the government MAY – not MUST — withhold a record. Remind the FOIA officer of this fact and press for the reason the administration doesn’t want them made public.
  • QUOTE Obama & AG “presumption of openness” directives: Agencies “should not withhold information simply because [they] may do so legally.

Consider consulting the DOJ interpretation when building your original FOIA request. For example, if you think the agency might withhold names in a database based on privacy, then be mindful in writing your request of the 4-step test in the DOJ guide that the feds are required to apply before withholding under Ex. 6.

— Deborah Nelson

 

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