At the end of Sunshine Week last year, my colleagues and I at MuckRock decided to embrace the FOIA Friday tradition and host an open conversation, inviting anyone to join a Zoom call to chat about all things public records on Friday afternoon.
On the call, I talked to the group about an interesting document that I had just received and finally filed a request that I had wanted to file. We discussed the challenges of requests and learned from others’ challenges.
And what better way to approach a good thing than to keep it going? After Sunshine Week, we kept hosting the conversation every month. We invited guests, like journalists and historians, to talk about their work. Now, that Zoom call is a regular FOIA community gathering, a mix of live workshopping, questions, interviews and conversations.
To celebrate Sunshine Week and one year of FOIAFridays, I want to share five things I’ve learned through these monthly conversations. The takeaways are both big picture and specific, the type of information you can expect to get if you join as we continue FOIAFridays this month, next month and beyond.
Start with the forms, logs and data inventories
One of the most common FOIA 101 tips that I give is to be specific, to know exactly what you’re looking for and whose filing cabinet it is in. Most of the time, it’s not that simple. You’re asking for something in someone else’s office, though you don’t know quite where it is. And often, the people in that office don’t think they should give it to you even if they can locate it. You’re playing pin the tail on the donkey with information.
One way to remove your blindfold is to rely on an agency’s own resources on how it stores information. You can do this by searching the agency website and finding the PowerPoints or PDFs of training material that they use to tell their staff where documents are stored. You can also request an agency’s FOIA log or records retention schedule.
And yet another way to peek inside the agency’s processes is through a data inventory or data index. In our FOIAFriday on data inventories, I learned how these datasets of datasets came to be and how they’re also called a list or roster of forms. Since then, I’ve continually pointed people to Patrick Maynard’s open source collection of police rosters of forms. All these tools give you a clearer view inside the mind of an agency.
Know your state laws and keep an eye elsewhere
FOIAFriday brings in requesters across the country who ask about getting documents from their local government. Every jurisdiction is different, but that doesn’t mean the laws and practices in your state are the only important ones. You should understand your state laws and how things work in your neck of the woods, but you shouldn’t underestimate what you can learn from how they work in another state or jurisdiction.
In our FOIAFriday about whether businesses or nonprofits are subject to public records laws, I surveyed how some states decide this based on funding, function, multi-part tests or case law. In the following month’s call, we talked about how to access a political candidate’s personal financial disclosures in different states. By comparing and contrasting different states along with the federal laws, you’re less likely to be swayed by arguments to keep documents secret that don’t add up. You’re also more likely to find convincing arguments for sunshine based on another area’s practice or laws.
Your right to know is the work of reforms and reformers
One of my favorite FOIAFridays of the year was my interview with Michael Schudson, a professor of communication at Columbia University’s Graduate School of Journalism and author of The Rise of the Right to Know, a history of transparency and freedom of information.
The biggest takeaway from that conversation was how modern America’s cultural right to know is. Schudson argues that the right to know is often incorrectly backdated as a founding ethos of American democracy, when it actually emerged as one of many cultural changes of the 1960s and ‘70s. Among other shifts, journalism learned to be more aggressive, Congress became more transparent and consumers demanded more information about the food they bought. In our FOIAFriday conversation, Schudson and I talked about the work of individuals in different sectors of society who didn’t know they were part of a larger right-to-know movement at the time. Today, their work has solidified into both the FOIA law and a broader culture of transparency.
To me, this made public records laws seem both fragile and excitingly malleable to more and better transparency pushes. These laws aren’t set in stone (hint: they’re as modern as our grocery stores), but they improve with reforms. And reforms need reformers, wrestling sunshine into their small slice of the world.
Challenge everything
If all FOIA 101 advice can be distilled into a sentence like “Become confident and skilled in asking for records,” then all FOIA 201 advice can be distilled into, “Become confident and skilled in challenging everything.” There’s a reason a requester as prolific as Jason Leopold continues to give “always appeal” as one his primary FOIA tips.
During our calls about appeals and lawsuits, I realized that the real skill is not just appeals specifically, but challenging everything. This means not taking at face value any effort to dissuade you from obtaining your records without referring back to the law and poking the logic. Whether you are asking the agency how they estimated fees, appealing a rejection or filing a lawsuit, you’re challenging the agency’s response.
It takes time and research to counter denials of your fee waiver, estimates for high fees, agencies that don’t respond to your requests or even agencies that don’t comply with handing over records after you appeal. But that is what takes you from a FOIA requester who sends a request and crosses their fingers, to a FOIA requester who sends a request and defends their right to know.
Share your FOIA battles
Remember how I said FOIA is like playing pin the tail on the donkey, but with information? Either you do this alone a lot of times and gain more spatial awareness for holding sharp objects while blindfolded, or you learn from how others respond to FOIA challenges.
The moment where you get better at public records requests is when you find a way to overcome the specific challenge of that request and generalize that to future challenges. Requesting government documents is a back-and-forth of blocks and counters while each party makes their case. Maybe that’s the reason martial arts was a main topic of one FOIAFriday this year?
When you share your challenges, people share back to you. You learn from other people’s wins and losses, and you build their experiences into your toolkit. You begin to see the bigger picture. But maybe even more importantly, you find a group of people to cheer you on.