Door 5. Following Up On Records Requests
So you’ve done your homework and you’ve filed your request.
Under state laws, which apply to state and local government, the waiting time for an initial response varies from a matter of days to no statutory deadline at all.
Where there are deadlines, it is important to be aware of them in order to safeguard your rights. Keep track of when you filed a request, the number of days within which you should receive a reply, and how much time you have to respond if your request is unanswered or denied.
For federal agencies, under FOIA, you generally should have a reply within 20 days of receipt of your request in the form of an acknowledgment of the request, disclosure of the records, or denial. If your agency has missed the deadline and you’ve heard nothing back, your request hasn’t resulted in the records you’re seeking, or you’re told that a search will cost you the value of your house and car combined, how can you follow up?
Under the federal Freedom of Information Act, the initial response may be nothing more than an acknowledgment that your request has been received. It could take days, months or even years before you receive a meaningful response, depending upon the agency’s backlog. Especially if your request is complicated and requires an extensive search involving the potential location of many responsive records, the backlog depending upon the agency could result in more than a year’s wait. A ProPublica article quotes sources describing several reasons for extreme delays by the agencies. Among the reasons: understaffing and the complexity of some of the searches.
HELPFUL TIP: You can get a general idea of how many freedom of information requests a federal agency receives, backlogs and outcomes by checking the United States Department of Justice’s list of FOIA annual reports by federal agencies: (http://www.usdoj.gov/oip/foia-ar.htm).
Whether you’re filing a request for local government, state or federal records, to avoid getting caught up in a quagmire, keep your request as narrow and specific as possible. After you’ve filed your request, keep the pressure on. Follow up with the agency’s clerk or freedom of information contact person. Back up any of your communications with notes of conversations or e-mail records. Be sure to document the date and content of your interactions, just in case you decide to follow through with an agency appeal or a lawsuit.
1. If your request is denied or your fee estimate is unreasonable, go back to the freedom of information specialist at the agency and try to negotiate for a narrower search that still fulfills your informational needs.
If your request is with some unit of the U.S. Department of Justice and you wish to follow up, according to the Justice Department:
“[T]he Department of Justice has established . . . a center for each of its 40 components, with a FOIA Public Liaison named for each, whom FOIA requesters may contact by telephone if they are dissatisfied with the response of the component’s FOIA Requester Service Center . . .”
[Justice Department FOIA Public Liaisons]
2. If going back to the agency doesn’t get you anywhere, file an appeal with the agency within the time limit allotted under agency rules. Anissa Hunter, freedom of information specialist at the federal Parole Commission, said appeals must be made within 30 days of the agency’s response. Appeals are considered by the agency chairperson and you can expect reconsideration and a reiterated or revised response within 20 days of your appeal.
3. If an appeal to the agency doesn’t work and the agency has either missed its statutory deadline and not responded or come back with an unreasonable fee estimate or an improper denial, consider a lawsuit. You don’t need to go to Washington, D.C., to accomplish this. You can file in the U.S. District Court location that is most convenient for you.
While filing a lawsuit may be a daunting proposition, there is a chance that you can have your legal fees reimbursed by the agency that denied the records if the lawsuit causes the government to change its position. One law firm obtained big bucks from the Federal Emergency Management Agency relating to FEMA’s refusal to release records regarding disaster aid recipients in Florida.
You can also file your own simple complaint. The Reporters Committee for Freedom of the Press offers a sample complaint that you can use if you wish to file the complaint on your own and directions for bringing a legal action:
(http://www.rcfp.org/foiact/appc.html)
(http://www.rcfp.org/foiact/guide_p.html)
(c) Geanne Rosenberg
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