Negotiating Records Requests, May 20, 2011

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Negotiating Records Requests

24 contributors

Questions

Question 1: How can you increase the chances of getting records in a timely manner?

• Ask for things digitally. Keep in touch with the records officer between written contacts.
• Organization is important when tracking communication with FOI officers. Helps speed up process if you know where you stand.
• Tell them you want it fast. Be amazed how often that can work.
• Utah has provisions for speedy requests--ask for expedited response in the beginning.

Question 2: When are you being stonewalled? What can you do?

• If the estimated cost is extravagant, just make it public, blog it!
• Write agency head a letter documenting the delay and showing exactly how the delay violates law. CC attorney.
• Complain! Up the chain of command or to council or board members.
• Rules from my old mentor when U are denied info: 1. Ask them to talk to their atty. 2. U talk to their atty.3. Ask yourself, "Who else has this info who might give it to me?" 4. Leverage the power of the press: Write about it.
• Re: Stonewalling. If it's electronic data, will claim can't or difficult to export.
• In TX, stonewalling=appealing every request to AG
• Raise your voice when appropriate. Don't start loud, but if stonewalled, a little anger goes long way.
• I publish the results and send them links to prove my point
• Excessive fees. With other cities for similar election records. Vendor/City wants $125-$460 to copy electronic data to a CD
• Just don't give up. The law's on your side, so keep pushing till you get the docs you need. Don't let 'em stonewall you.

Question 3: What are some strategies for 100% compliance on a mass FOIA project?

• Persistance. Everything that's already been said must be followed dilligently.
• File "pre-request" for metadata to learn about gov's data storage & export capabilities.
• Keep running clock on every request, post it on Web, follow up constantly, make sure 1 story is "who broke the law."
• Be clear from the start about what docs you want. The less confusion @ the get-go, the faster you can clear up problems later.
• Announcing a FOIA audit may help to get better compliance, encourage people to comply due to competition.

Question 4: When is it time to get a lawyer?

• Once they say 'no' and mean it. But a lot of times, a little negotiating can turn that "no" into something you can work with
• Time to get lawyer when you can point to black-letter law saying you should have it and it's clear agency not giving it.
• Best to have atty going in. I start CCing on correspondence as soon as agency stalls more than legally allowed.
• Once they say 'no.' But a lot of times, negotiating can turn that no into something you can work with.
• Always at least send one letter if not more appealing before you get an attorney, it saves everyone money in the end.
• Attys are often too pricey for my paper, but once we backed off a challenge w/ help of a pro bono atty filing one complaint
• Time to get a lawyer when you've got a good case for attorney fee award from court
• If having trouble with paying for a lawyer don't forget the NFOIC Knight fund, information here, http://tinyurl.com/3rqqqk6

Question 5: What are your juiciest tricks for getting records on the cheap?

• Ask for them electronically. Use any provision that allows media a fee waiver.
• Requesting fee waivers along with the initial FOIA, digital docs (even if it means showing them how to export a pdf).
• Make some friends with the agencies along the way. Always be polite! Goes a long way towards making it easy.
• Find leakers.
• Say "'Agency X' gave me docs for free" if that's true. Also, request fee waiver in original request.
• Avoid hardcopy (copy fees). Ask for itemized invoice
• I always ask for the fee waiver, and I even cite state code for it.
• Re: fee waiver. I always ask; it's part of my FOIA form. Reinforce that request in followups.
• If your state allows it, request to view the documents only, saves money on printing, copy only what you need
• If charged fees, ask for itemized expenses to fill the request. "Staff time" to fill data requests is often exaggerated
• I always seek an estimated cost before I initiate my records request
• If body wants to charge for records, just show up physically to inspect them. Take a hand scanner/digital camera!

Tips

• Never narrow a FOIA request unless you're getting something huge in return. Like an immediate turn around.
• Biggest hagglers? Law enforcement in Calif. They start out with presumption that everything is confidential.
• Usually only fight fees when they place "staff time" hourly charges that ring up thousands in bills.
• Never drop the request. Bring a scanner to their office and eliminate copy costs.
• Showing up has always worked for me. Sometimes I'd give a day or so heads up.
• I never set hard $$ ceiling. Just ask in my FOIA for notice if price rises above certain amount.
• Thats actually true in almost every state: unless it is a doc already, you cant get it.

• IL does not require govts to create records. But I've found most, in most states, will do it at a price

• I've posted ridiculously redacted docs online. Agencies learn.
• Specifically ask for "electronic file" or even "locked Excel spreadsheet." Works sometimes.
• A self-made database creates problems. It's psychology. Record keeper feels possessive 'cause he made it.
• Some of us FOIA Attorneys aren't that expensive
• Utah Legislature and other states should actively discourage proprietary databases. Comercial software is best.

Links

• Government Links of the Week – May 20, 2011
• Michigan Freedom of Information Act: Notable requests. Quote for $3.5m in MI.
• KY Superintendent Reviews 2010.
• Rewarding Failure, commentary released by the Bluegrass Institute for Public Policy Solutions discussing the broken process of evaluating school district superintendents in Kentucky.
• Open Government Resources.