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Thursday, March 7, 2019
MFIA Boot Camp Trains Lawyers and Journalists on the Freedom of Information Act
The Information Society Project, Abrams Institute, and the Media Freedom and Information Access Clinic (MFIA) invited investigative reporter Seth Freed Wessler and New York Times First Amendment Fellow Al-Amyn Sumar to Yale Law School in February for a deep dive into Freedom of Information Act (FOIA) requests.
MFIA’s annual Freedom of Information Act boot camp helps prepare journalists, lawyers, law students, and the general public to file FOIA requests to obtain publicly available documents from federal agencies.
The Freedom of Information Act was enacted in 1967 (and amended after the Watergate scandal in an era of renewed interest in the issue of government transparency) to give life to the Jeffersonian vision of press freedom as the Fourth Estate. The law allows anyone with an interest in informing the public to request documents from the Executive Branch, excluding only the Office of the President and classified documents. However, only a small percentage of FOIA requests are factually filed by the press, with about 40 percent spearheaded by corporations looking to understand regulations for commercial reasons. According to Freed Wessler and Sumar, this slows down the FOIA process for journalists considerably.
Freed Wessler and Sumar highlighted the importance of using the law to shine light on subject areas for which reporters don’t otherwise have direct lines of contact or are notoriously tight-lipped, like the criminal justice system. Freed Wessler explained how, after a series of prison riots, he filed FOIA requests for related events, complete health records of everyone who died, and reports from federal monitors overseeing compliance of the private prisons involved in the incidents. This then led him down a path investigating potential medical negligence and abuse by prison staff. Without FOIA as a place to start, stories like these often go unreported.
But government data provided alone may not be meaningful to the layman’s eye without explanation by experienced professionals related to the topic at hand. For his prison story, Freed Wessler partnered with doctors to create a prison mortality analysis, finding that about a third of deaths at the private prison facilities were due to medical neglect.
The MFIA boot camp provided the rare opportunity for a deep dive into the ins and outs of filing FOIA requests from those who do so regularly, offering tips of the trade that newcomers might otherwise take years to stumble into on their own. For instance, FOIA includes an unfunded mandate to release information, which translates into the reality that many federal agencies are entirely unable to process requests quickly or efficiently.
Freed Wessler and Sumar had a few tips on how to optimize a FOIA request:
- Be specific with your language. Don’t make broad sweeping requests. It’s hard to know exactly what you’re looking for when filing FOIA requests, but be sure to first review other sources of more easily available public information to narrow your search. For example, oversight reports, budget and appropriations bills, posture statements and legislative testimony, and testimony from agency officials are all published regularly without first having to request them. In addition, articles that have already been published by other journalists may reference a specific meeting or document that can provide an angle into another story.
- Think like a FOIA officer. Avoiding ambiguity will simply make it easier for the person whose job it is to find these records for you to do just that. Being thoughtful with your keywords and knowing date ranges is a must.
- Show a sense of urgency. If you can demonstrate how the alleged federal activity would be crucial in informing the public, this can sometimes expedite the process. If not, simply calling FOIA officers often can help keep your request on their current to-do list.
- Remember that FOIA is a federal law. It is separate from individual states’ open records laws, for which states have their own varying degrees of transparency. These laws often have much shorter timelines than FOIA, but it’s a less centralized process. The Reporters Committee for Freedom of the Press has a database of these laws for more details on respective states.
- Finally, don’t get discouraged if your request is denied or the documents come back with redactions. These decisions can be appealed by suing federal agencies, and MFIA is here to help.
FOIA cases fall in line with the MFIA Clinic’s core mission areas, including government transparency, press freedom, and access to information. The Clinic has represented dozens of journalists over the years in cases involving FOIA requests, with many positive outcomes.
by Leah Ferentinos