FOIA Tip 12: Putting Arguments for Release in Your FOIA Request and Helping the Agency Help You
For an ordinary FOIA request, you do not need to justify your request or in any way demonstrate that you are entitled to the records you are seeking. Your right to records is not based on why you need them or who you are. Thus, many of our requests are a simple template into which we insert a description of the records we are seeking.
However, it is our experience that FOIA processing is more of an art than a science and sometimes, just sometimes, your request reaches someone who is interested in your research and may push a little harder to find records and get them released to you. So, there are some general arguments that you may want to include in your initial request letter.
First, several FOIA exemptions are discretionary and some require a balancing of different interests. If your request involves information likely to be subject to withholding under Exemptions 2, 5, 6, 7, 8 or 9, then you definitely should state that if the agency regards any of the documents as potentially exempt from disclosure under the FOIA, the agency nonetheless should exercise its discretion to disclose them. This kind of argument is quite relevant these days because President Obama had directed agencies to apply a presumption of disclosure, and Attorney General Eric Holder has further instructed that agencies should exercise their discretion to release records, and the Department of Justice has issued detailed guidance to agencies on how to exercise their discretion.
In fact, we ask the agency to exercise its discretion to release in all instances because in some cases the passage of time, public disclosures, or other circumstances might affect the releasability of information and we want to bring that to the agency’s attention. So, to pre-empt exemption claims that you foresee the agency making, you may include brief arguments, for example, that release of the documents is in the public interest or that the passage of time has reduced potential harm so disclosure is warranted.
Second, where there is potential balancing of privacy interest against the public interest in disclosure, this is your chance to say why the public interest is significant and should outweigh the privacy interest. It is also a chance to explain why there is no privacy interest, for example if the person at issue is dead. Proof of death can include an obituary or a death certificate. You also might argue that the person is an elected official engaged in official duties, and thus has waived any privacy interest in the records that you seek. (Don’t assume the agency will know the person about whom you request information is a public official — you should explain what their position is). If the person is alive, you might be able to obtain a privacy waiver from the person to allow the agency to search for relevant records. An example of a privacy waiver can be found on the FBI’s Web site at http://foia.fbi.gov/waiver.pdf. For more tips on requesting privacy-related information, see FOIA Tip 4.
Third, under the FOIA, agencies are required to release all segregable, nonexempt information within a document. This is referred to as the “segregability requirement,” and it prevents agencies from withholding entire documents if only a portion is exempt. In your request letter, you should remind the agency that the FOIA requires the release of all reasonably segregable portions of records.
Fourth, you might want to include information that helps the agency know what they are looking for. In many cases, the FOIA officer who processes your request is not a subject matter expert, so you should not assume he or she knows anything about the subject beyond what you have included in your request letter. You may attach information, within reason, that helps agency staff to locate the documents, such as copies of articles or other documents that reference the document(s) you are seeking or the subject, event, or person you are researching. don’t overdo the documentation, of course, because you do not want to confuse the FOIA officer.
Fifth, you might be able to help with the search by including a list of offices or bureaus within the agency where you think the documents might be located and request that the agency search the files of those offices. If you believe the information you are seeking may be in e-mail or another electronic format, you may want to include a sentence specifically requesting that the agency search its e-mails and electronic files.
Don’t feel you have to write extensive information in your initial request, but do try to be sensitive to the fact that the FOIA officer may not be an expert in your topic and is just one person in a large institution. Do what you can to help them find your records and understand why they should be released.
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If an official with one agency acknowledges the existence of a document from another agency in a security-vetted memoir, does that second agency have to acknowledge that document for the purposes of FOIA?
To be specific, I recently FOIAed for a document described by Richard Holbrooke in his memoir, To End a War, that was created by the CIA. The CIA hit me back with a “Glomar Response” despite, according to Holbrooke, the fact that the document was unclassified and specifically created by the CIA for him to give to Slobodan Milosevic and then presumably Serbian/Yugoslav intelligence. I am writing up my appeal now and I am wondering if that would be a useful thing to include.
It makes sense to include those points. If another agency or a non-agency talked about the document, the CIA may take the position that they have not officially acknowledged it and so it is not already known to exist. That is why they feel able to Glomar it. Don’t forget that a Glomar is not a denial of the record, it is a refusal to confirm or deny the record even exists because they believe that acknowledging the record itself will expose a classified fact. Your information may be sufficient to persuade them that it is already acknowledged, but as you can imagine they are not easy to persuade. I would put as much in your appeal as possible to indicate that it is officially acknowledged. Even if you win that, don’t forget that they might argue it is not releasable. So, as long as you are at it, you might want to try to provide whatever information you have about the document or the facts in it already being public. Just to warn you however, the agency typically takes the position that if the document itself is not already public, even if other documents or information is public on that same topic, then they still can deny the record.