Tips, Tricks, and Why You Should Always Appeal FOIA Denials
Nate Jones is the Director of the Freedom of Information Act Project for the National Security Archive, and editor of their Unredacted blog. For this week’s Requester’s Voice, he spoke to Michael Morisy about how he got started in public records, why you should always appeal a denial, and how that warehouse from the end of Raiders of the Lost Ark is totally a real thing.
Basically, it’s an organization that’s been fighting against government secrecy since 1985 — since Iran Contra through the Iraq wars and to the cyber wars of today. Today, we fight against secrecy in the US and abroad, and our best tool is the Freedom of Information Act. We submit between a thousand and two thousand FOIAs a year, and we’ve gotten tens of millions of pages of documents declassified. We post them on our websiteand we post them on the Digital National Security Archive, which is a site that university libraries have access to.
How did you get involved with National Security Archive, and what drew you to the organization?
Even as an undergrad student, I was working on this project that I’m still working on, about near nuclear war in 1983. Essentially, a nuclear release exercise called Able Archer 83 was a very realistic NATO drill – it was so realistic that it spooked the Soviets. They readied their nuclear forces in a way that hadn’t been seen before, the British intelligence and American intelligence kind of said ‘Oh no, what’s going on?’
It got all the way up to the President, and it had an effect on him. I was writing about this, and all the archives and all the presidential libraries said that this information was secret. It got me kind of angry as a historian.
Sure, we should redact some nuclear weapon design information, but it seemed like the public should have a right to know how close we came to nuclear war in 1983. So I filed my first FOIA, and the guy at the Presidential Library actually kind of snickered at me, as if it would never get done.
True enough, my first FOIAs weren’t very successful. So, I turned to the experts at the National Security Archive, and read all their stuff and learned, through their tips, how to effectively file FOIAs. Luckily enough, I got an internship here. Even more luckily they hired me on and haven’t got rid of me yet.
The joke is that, if the government had just properly processed my first Able Archer FOIAs, I would have went on my happy way and wouldn’t have submitted and help submit thousands, tens of thousands, more.
Given that tough start to FOIA, where do you think it shines as a transparency tool these days?
First, I guess the biggest point I would want to make is it’s a very unique tool. The US government is actually pretty good about giving information out that it wants to give out proactively.
I think Obama, when he said it would be the most transparent administration ever, that’s what he meant: That we’re going to give out a lot of data that people hadn’t released before.
But many times that’s not the most important information. The most important information is the information that the government doesn’t want to give out, but we’re lucky enough to have this law that gives the public a fighting chance to force the government to give information it wants to keep secret. That, for all FOIA’s problems and its inefficiency, is why it’s so important. It’s a tool that still gives requesters – with hard fought battles – win after win after win. FOIA forces the government to give information out that it wants to keep secret – is a very good check on totalitarianism.
That’s why I’ve said that the Freedom of Information Act is the crown jewel in the open government repertoire.
Where do you see it as falling short these days, and where does it not live up to that promise?
I’ve been thinking about this a lot, and I think that the biggest problem and shortcoming with the Freedom of Information Act is an unwillingness or inability of the people in the US government that are supposed to administrate it to tell the truth and explain the problems. There was a congressional hearing that a bunch of people testified at a while ago, actually discussing many of the problems that I’ve read on otherRequester’s Voices. On the first day, it was requesters that understand that is a tricky process, but really want to fix it. If you look on Twitter, on the hashtag #FOIA, you’ll see the same thing.
The next day, all the testimony was from people from the government on the inside. Again and again, they’ve said — maybe it’s because of the interagency review process, or they’re not allowed to say negatives – but again and again, they’ve said that FOIA was working fine, perfectly.
At one point the chair of the committee said that the head of the Department of Justice FOIA shop, OIP, must be living in la la land if they thought it was all fine.
I think he had a good point, I think that to really fix FOIA the one thing that could fix it is for people to say Okay, here’s an honest appraisal, we are taking way too long in responding to requests, we’re redacting way too much, our backlogs are too long; the reasons for it are maybe not enough resources, or requestors’ requests are too broad. They got to say, they have to say that many times the FOIA process is broken. They have to get out of la la land, speak clearly about it.
Why do you think there is that disconnect?
Sitting on the FOIA Advisory Committee has given me more perspective. I think that, unfortunately, it may be a fact of government bureaucracy, where people simply are not allowed to tell the truth. They have to get all of their statements cleared, and they can never get a statement cleared that says that some aspect of their agency is doing bad.
This is pretty obscure, but it almost reminds me of, in Czechoslovakia, of Charter 77. During government repression in early ’77, Charter 77 said, Tell no lies. Sometimes I feel like the government and FOIA folks need to give that a read, and just … we know it’s not their fault, but admit that there are huge problems. Start the dialogue of admitting that and then work towards how to fix it. FOIA experts need to evolve to have an “Inspectors General mentality.”
Even on the federal FOIA Advisory Committee, I don’t think we’ve quite gotten to that step yet. I’d love for you to get some more interviews with FOIA processors, and what their perspective is on why they can’t speak the truth about FOIA.
Do you have a favorite request you’ve filed?
First of all, working at the National Security Archive, we get maybe five, six, seven packages of documents every day. Every day it’s like Christmas, presents to open, it’s great. My favorite one has to be the President’s Foreign Intelligence Advisory report on the 1983 war game, which is the story I told you before. 12 years later, we finally got it released, probably 90% unredacted. What it said was confirmed this theory I had all along, that this Able Archer war scare was very dangerous, and it said in no uncertain terms that we were a hair trigger away from war with the Soviet Union in 1983. That probably was the closest we came to nuclear war since the Cuban Missile Crisis, except that for 30 years, the government had kept this one a secret.
Finally, after this twelve year fight that we went through – with ISCAP in this case, which the more advanced filers will know, we got the package, ripped it open, and that was a really rewarding one to win. We are still fighting a couple redactions, for the record.
What advice do you have for a first time FOIA filer?
Sure, I’ve got maybe two-and-a-half pieces of advice. The first one is, be as specific as possible. Don’t say, Any and all documents about subject X. While this is legal, it’s probably likely to get you poor results.
It’s much better to be as much as you can, your research, to name specific documents. Even if you have to kind of guess a little bit, it’s better to say talking points about this, or a briefing about this, rather than all documents that are about this. That’s because it makes it a lot easier for the person at the other end doing the search to search for it. If it’s an easier and well put together FOIA request, it makes it a lot less likely that that will go to the bottom of the pile. That’s one.
Two, always, always, always appeal. I think the government stats show that one-third of all requests that are appealed get more information.
That means the governments doing requests improperly one out of three times.
I also know that the government statistics show that less than three out of 100 FOIAs are actually appealed. If you do the math and extrapolate that out, that’s a huge swath — over 150,000 FOIAs and millions of pages of documents — that are improperly withheld the first time and continue to be improperly withheld, even though – if the statistics bear out – they would have been released had it been appealed.
My last half is also definitely appeal those no documents responses. You can appeal any inadequate determination, and a no responsive document response is one. When you appeal, you might have to do the FOIA job process for them sometimes, and look at the National Archives record keeping schedule, which is kind of a road map of the documents.
A lot of times when the agency says there’s no documents, that’s not correct.
One of the things I’m curious about is sort of the changing face of FOIA requesters. Do you think the media is spending enough time filing its own requests and sifting through documents? Do you think there’s a missed opportunity there?
Of course there’s always room for more FOIA requests, and the more the merrier. I think the media is far ahead of other groups. I’m a historian by training and … I think that historians under-utilize FOIA.
I think that among the historical community, there’s a problem that people are too willing to say “Oh, that history is classified so we can’t make judgments on it.” I think they should be fighting for it. I can speak for historians, I want them to file a bunch more requests.
Where did you learn about the FOIA process? Were there any other resources that you found really useful?
There are a lot of good resources out there. I would say my favorite, I hate to do self-promotion, is the National Security Archive’s Effective FOIA Requesting for Everyone. That’s a good quick read that can get your head around it. What’s also very useful, and I’m not a lawyer so I just sort of fake it, is Litigation Under the Federal Open Government Laws, it’s another book that I reference all the time. That’s a handy rundown of legal cases, which kind of is a one level beyond.
Those are the two texts I use all the time. Beyond that, I’m just really fortunate to see so many requests go in the National Security Archive, with my co-workers and analysts filing many of them. I copy that and see what tactics work and which don’t work, what agencies kind of have the FOIA spigot turned open, and if they do, hit them up. The first step for people wanting to get into FOIA is reading, I’d recommend reading theNational Security Archive’s guide. It’s free, and if you’ve still got questions, shoot me an email and I’ll help as much as I can.
Any kind of final tips or tricks that you think people should keep in mind?
Here’s a great tip, and again, this is a little bit pointed towards historians. At the end of Raiders of the Lost Ark, they put the Ark in a secret government warehouse. One of those actually exists, and it is subject to FOIA, and it’s called the Washington Records Center. What happens is, agencies want to get rid of their old documents. They want to give them to NARA, but the National Archives has such a large backlog, there’s this document purgatory. Docs even sit for 30 years, maybe more, 40 years. All of these documents, the law says, are subject to FOIA. They have to be searched by the originating agency. Agencies don’t like this, because they think that they gave these documents to NARA and they’re not their problem anymore, but that’s not the law. They still have to go to this Washington Records Center, which is in Maryland actually, and search for the documents.
On any appeal on an inadequate document, if it fell into this black hole it’s probably there. The last tip on there, there is a form called the SF135. Any time they give documents to this place, to create an index of them. That could be a great tool for people to go and mine these SF135s, find the description of records they want and then FOIA them. That’s a resource that I think a lot of people don’t know about that gives good documents.
Any last thoughts?
I would say definitely read our website, read our blog with Lauren Harper’s amazing work and the content I try and do. The last thing I want to say is that I don’t want to sound morose about FOIA. It has some problems, but more often than not they can be overcome by requesters. Keep fighting, and in the long run, the documents tend to get released.