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Tips on How to Use the Freedom of Information Act

Hope everyone enjoyed the Columbus Day holiday!

Last week, I gave an overview of the National Security Archive and its goal to break loose for public consumption previously unavailable historical records. Critical to those efforts is the Freedom of Information Act (FOIA), which, along with the related Mandatory Declassification Review (MDR) process, is one of the most important, yet arguably least appreciated, tools we have in this country for opening up our history, understanding how our government works, and promoting accountability among public officials.

But how does it work, and how can you make it work for you? That’s the subject of this week’s posting.

First, a few samples of documents released via FOIA and MDR that are currently featured on our Web site:

— A remarkable 2006 “mea culpa” document from the CIA pinning part of the blame for U.S. miscalculations of Saddam Hussein’s WMD capability on intelligence analysts’ failure to look at Iraqi behavior “through an Iraqi prism,” or more specifically from the viewpoint of “a paranoid dictatorship.”

— A copy of one the Cold War’s most controversial nuclear strategy documents – Jimmy Carter’s Presidential Directive 59, incorporating concepts that continue to underlie U.S. nuclear policy today.

— Previously classified cable traffic from the State Department describing and assessing the nature of Pakistan’s Haqqani Network – extremely useful background material for understanding the group which the U.S. government last month declared a terrorist entity.

— A compilation of once-secret materials about the super-secret National Reconnaissance Office (NRO) that runs our spy satellite system. More useful background on a little-known piece of our national security system.

— No longer on our home page but still of genuine significance – numerous records obtained from the State and Defense Departments, CIA and other agencies detailing U.S. awareness of human rights violations by American allies in Argentina, Guatemala, Peru, Chile and elsewhere in Latin America in the 1970s and 1980s. As a result of their release, these materials have since been used as evidence in the trials of former Peruvian President Alberto Fujimori and other ex-military and political leaders now being held to account for their illegal activities while in power.

So, how can everyone else get access to this kind of information?

The basic approach could hardly be simpler: get the address of the agency you want to write to (we have a list on our site), and send them a letter that says, in essence, “Under the provisions of the Freedom of Information Act, I hereby request …”

The trick, of course, is in the details. How do you decide what to ask for? How do you frame the request to get the best chance of a meaningful response? Partly, it depends on your interest.

If you want to know about the state of security at our diplomatic facilities around the world (in light of the Benghazi, Libya, attack last month), write to the State Department’s Bureau of Diplomatic Security and ask them for any studies they’ve done in recent years, or specify a region or a particular threat you’d like to learn about.

To borrow from a story in yesterday’s New York Times, if you want to know why the Social Security Administration (SSA) has decided to limit access to its death records (affecting hospital safety assessments and consumer fraud prevention), write to the SSA and ask for records of meetings, memoranda and decisions relating to the decision that, the Times reports, went into effect last November.

Want to know how the Air Force base in your county deals with spilled jet fuel? Ask the Pentagon, the Air Force and the base itself for reports, assessments, environmental impact statements, and anything else you think would reasonably produce the relevant information.

How about finding out about yourself? What does the FBI have on you? Or the SSA? Or the Veterans’ Administration? You can do that, too, by filing a Privacy Act request supplying personal data about yourself which the agencies can use to pull your records (and make sure it’s you who’s asking!). Each agency will have the required info on their site telling you how to make your privacy request.

In short, you can ask for any information from any federal (and most state and local) agencies simply by sending them a letter, or in some cases an email.

Great, right?

Yes, as a matter of fact. It’s an extraordinarily useful law, but most people never think about using it. It’s mostly used by veterans seeking access to their records and rights, corporate officials looking into their competitors’ activities or exploring business opportunities, federal prisoners researching their status and legal options, and, less frequently, journalists and historians.

But of course there are some catches. First, it can take a long, long time to work. While the FOIA says you’re supposed to get a response within 20 working days, that really only means you’ll get an official acknowledgement of your request. Actually obtaining the documents could take months, years, even decades!

Why? Because FOIA offices traditionally are far, far down the priority list for senior agency officials, working with budgets and incentive systems that are wholly inadequate for effective results. Also, the officials who often are asked to search for your documents are usually occupied with what are considered more “mission critical” work, which your requests are taking them away from. And there are no meaningful sanctions for just letting the months go by without fulfilling what is, after all, the legal responsibility to respond.

Also, while the law gives you the right to ask, it doesn’t mean you’ll get what you want! There are 9 different exemptions under which agencies can deny you access to records. These range from dangers to national security, to protection of personal privacy information, to commercial data, to current law enforcement material, and so on.

Those are legitimate reasons, in principle. The challenge comes when you don’t agree with an agency’s view that your request can’t be fulfilled. What do you do then?

Appeal! This is a critical point for anyone seriously pursuing access to government records. The Act includes a provision for going back to the agency and asking them to revisit their decision. It’s important because in most cases the appeal kicks the decision up a level or two within the bureaucracy, where typically someone with more authority or simply experience may decide that the original ruling can be overturned.

The final recourse, if you’re still not satisfied, is to go to court, which FOIA also provides for, although that’s obviously a costly enterprise.

The MDR process follows a different procedure – you can’t sue but you can appeal to the agency, and then you can seek further redress from a special interagency panel that has the authority to overrule the original agency’s determination. That can be very valuable if you’re dealing with an agency like CIA or FBI which has shown a pattern of flatly refusing to release certain kinds of information.

While I’m on MDRs … that is the preferred process for documents that are classified and where you can pinpoint the item precisely — usually by title and date (information you might glean from a newspaper article or a footnote in an official report). The request reads very much the same, but specifies that you’re seeking materials through Mandatory Declassification Review. For a variety of reasons, this approach is also much less costly and it can take far less time to go through all the appeals steps.

The main cost in both approaches comes in the form of agency search fees, which depend on who’s doing the searching. At a typical department like the SSA (according to its site), a search by a lower-level office worker runs $16 an hour, while a senior official’s time costs $59 an hour. Recently, the CIA upped its maximum hourly charge for MDRs to $72. That can be a huge obstacle, which makes it very important to see if you can qualify for a fee waiver. If you’re affiliated with an academic institution or are a member of the news media, you’re generally eligible for a waiver (of search fees, not copying fees). If you’re not, and especially if you work for a commercial corporation, you’re going to have to pay the search costs.

Almost every federal agency has information on their sites for how to file requests (with suggested language), what they’re likely to provide or deny, and what it’ll cost you.

You can also check our organization’s FOIA pages (http://www.gwu.edu/~nsarchiv/nsa/foia.html) or any number of other groups’ sites that work with access to information issues.

The next question, then, is: what are some ways to maximize your effectiveness with FOIA? We’ve been at this for over 25 years, and while there are no magic bullets, here are some helpful tips to keep in mind:

— Do your homework (part 1) – know whether the material you want is already available publicly (a lot of material gets posted on agency Web sites, in their Electronic FOIA Reading Room, etc.). FOIA can take a very, very long time, so spare yourself the time and effort if you can.

— Do your homework (part 2) – know what agencies handle the topics you’re interested in; better yet, learn what bureaus or even staff were/are involved, and try to get a sense of what kinds of paperwork those people created. The more precise you can be in identifying the who-where-what, the easier it will be to get your material (and the less you’ll pay in search fees, if you don’t qualify for a waiver).

— Be reasonable and keep it simple: Don’t ask for things that are certain to be too sensitive to be released. For instance, requests that clearly would expose major military secrets are not likely to be very fruitful. Also, don’t ask for “everything on the U.S. occupation of Iraq” — requests that would yield file cabinets worth of paper. Try to pinpoint what you want by topic or date range, e.g. It makes it easier to process and is less likely to make the poor individual assigned to your case throw up his/her hands in frustration.

— Be comprehensive: having said the above, it’s important not to artificially limit your scope. For instance, if you’re looking for material on events similar to Benghazi, try asking not just the State Department but the Defense Department and the U.S. Marine Corps – two other entities directly involved in the security of official American facilities abroad.

— Try an MDR rather than a FOIA: if you know the specific document you want and you know it’s classified. (Check our FOIA site for more about MDRs.)

— Be informative. During the appeals stage, make your best argument about why you think your materials should be released, why it won’t harm national security, etc. And be sure to provide plenty of back-up information to help your case, including copies of articles, or references in books, about your document or the subject matter that will help someone understand better what you’re after (and in some cases make it harder to deny the existence of a document, or claim that it needs to remain classified).

— Be patient! Know that it may take many months.

— Be cooperative. Remember that regardless of the fact that you’re exercising your legal right, you’re still taking up the time of one or more people who (rightly or wrongly) may look at your request as a major intrusion on their day. Be ready to work with them to come up with a more feasible request, if asked, or to be flexible in whatever ways you’re willing to consider.

— But be persistent, too. Don’t give up. And don’t think it’s not worth it. Our system depends on people taking the initiative. If someone doesn’t ask for something there’s a good chance it may never find its way out into the public domain.

These are some of the things it helps to know when filing FOIAs. For a lot more detail, history, facts, and suggestions, check our FOIA pages, including “Effective FOIA Requesting for Everyone – A National Security Archive Guide,” available for free on our site.

Happy hunting!

(Next week, a look at how our staff librarians prepare our highly indexed document publications for the Digital National Security Archive.)

Malcolm Byrne
Deputy Director, Research Director
The National Security Archive
at George Washington University

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