When You Don't Get What You Asked For
Once you've made your request, you'll get a reply that falls into one of the following categories.
- You asked the wrong person.
- It's gonna cost you...
- It'll be a while...
- Here is everything you asked for!
Here are some tips on responding to those types of answers:
Read the reply carefully. Why is your request being denied? Here are some possibilities:
- Your request is denied on the grounds that the requested records are exempt from the open records law in your state. Your first step if you receive such a denial is to review the law in your state (links to all the state laws are posted elsewhere in this Wiki). The law is very specific about what records are exempt. Experienced requestors realize that just because the agency you've requested the record from says that it falls under an exemption doesn't mean that it really does. Many states do not provide any training to those in charge of complying with open records legislation. If you assess their answer, and believe after consulting the law in your state that the denial is wrong, your next step would be to write a polite letter in which you state that you believe they are in error when they claim that the record you seek is exempt. Of course, you also give the reasons why you have come to that conclusion. Also, ask an experienced requestor for help!
- Your request is denied on the grounds that the records do not exist. In such cases, it is not unusual for you to have some reason to believe that the record does, in fact, exist. Let's say that you've asked for a copy of a feasibility study. The agency you've approached denies that there is a feasibility study. However, you've seen an item in that agency's budget where it paid for a feasibility study. In this case what you want to do is send back a polite letter indicating why you believe that the record actually does exist.
- Sometimes a request is denied because the specific document you asked for does not exist. Another document containing the information you seek DOES exist, but the agency is under no obligation to tell you that. They can just deny your request and not attempt to help you identify the correct document. For example, you may have asked your school district for a list of all contracts it entered into in the previous year without going through a competitive bidding process. It's unlikely that it would keep such a list. This doesn't mean you can't get the information...you just need to figure out a different way to ask for it. In this example, you might consider asking for any records showing the school board's deliberative process for any vendor contracts over $25,000.
You asked the wrong person.
If the agency says you sent your request to the wrong person, in their reply they ideally tell you who the right person is. (We recommend that when you write your original request, you specifically ask the agency to provide you with the name and contact information of the correct recipient of the request if the person or department you sent it to can't help you.) But if the reply simply says "I'm not the right person to get these requests" or something similar without telling you who is the right person, your next step is to call the department directly and ask for the contact information of the Open Records compliance officer. Or say, "I want to file a request with your agency for some public records. Who handles that?" Otherwise, you could write back to your original contact and ask them who can provide the records you seek. Consider a separate letter to the head of the agency suggesting that the agency's website include clear, visible information about how citizens can file open records requests with that agency, as this would obviously save everyone time and hassle.
It's gonna cost you...
Review your state law carefully to be sure that you are not being charged excessively. Most states require the requestor (you) to pay for reproduction and shipping costs. This means you can expect to pay for copies and postage. Other charges might include the time it takes the agency to search for and find the records you have requested. Another charge that can dramatically escalate the fees the agency proposes to charge you are the time it would take someone at the agency to go over all the requested records to determine if any of them include material that is exempt from the open records law. Some laws forbid the agency being FOIA'd to charge a fee for the time it takes to find the records being requested, and some do not. Knowing your own law inside and out is your best bet. It is also important to be in touch with others in your state who are familiar with how agencies in your state typically respond. In our experience, it is not at all uncommon for agencies to ask for search fees and fees for supervisory employees to review the requested documents that are far out of line with state law and current case law. If and when you get a really excessive demand for fees, look for people who are intimately familiar with the laws in your state. In the meantime, you can also narrow down the scope and scale of what you have asked for.
It'll be a while...
Be sure you understand the law regarding FOIA compliance timing in your state. The employee tasked with responding to your request may not be aware that according to the law in your state, they are legally required to respond within a certain number of days. Putting this information right in your original request is a good idea (e.g. I look forward to your reply within _ days as required by ___ statute). If you have not received a response within the time required by law (or if you are unlucky enough to be requesting records from one of the states with no specific timeline), re-send your request and be ready to pursue the matter with someone who can help.
Here is everything you asked for!
Do cartwheels across the floor! Be very excited and happy that you got what you were looking for! Now start planning your next round of requests based on the information that you just got!