Freedom of Information: Public Records Requests

Posted by Ezra Glenn on July 20, 2012
Missions, Reconnaissance, Shape Your Neighborhood

Many of the “reconnaissance” missions found here either explore some existing public database (such as the Census, via FactFinder), or demonstrate innovative tools to gather new data for your planning efforts. Sometimes, however, you will be interested in making use of information contained within City Hall or some other public agency, but it is not entirely clear how to gain access it. When access to information is the problem, it is important to understand the notion of public records and the proper application of the “Federal Freedom of Information Act” (and any parallel state legislation).

What the law says

President Lyndon B. Johnson signed the Freedom of Information Act (known as FOIA) into law — appropriately, albeit somewhat ironically, given the players involved — on July 4, 1966, thereby establishing a consistent process under which citizens could enforce their right to access government records. Importantly — as legal scholars and civil rights advocates will be quick to note — the right itself existed prior to the Act: in a democratic society, public records are already public, and we have every right to view them, copy them, analyze and distribute them, and otherwise be as nosy as we want to be. Remember: it’s government of the people by the people, and we shouldn’t be shy about asking what it’s up to even when it operates behind closed doors.

Over the past five decades, FOIA requests under the act have become a standard step in investigative journalism, citizen government accountability movements, and even high-profile lawsuits. Nationwide, more than 500,000 requests are made each year, resulting (eventually — see below) in one of the most abundant sources of information about an astonishing array of topics, from arrest records to political campaign spending, from tax assessments to high-school drop-out rates, and so on.1

(Note: although technically FOIA applies only to the federal government, most states have passed similar public records legislation, so much of what is discussed below can apply in those cases as well — simply cite your state’s statute instead of, or in addition to, FOIA in your request.)

Preparing a FOIA or Public Records request

Filing a request under FOIA or a state public records law is actually quite simple, once you know what you want and which agency you want to ask: a formal request is really nothing more than a letter to an executive agency asking for access to certain records under the act. You can ask for copies (in print or electronic format), or even just ask to be able to come and look at them. That said, as with many things, the devil is in the details.

The most important advice in preparing a formal request is to avoid filing one if at all possible. Often you may be able to find the information you seek through other channels: agency (or watchdog) websites, the public library, or even just by informally asking to see them. For requests related to local government or smaller local agencies, this is all the more true; there is little need to file a formal public records request to see a copy of the zoning ordinance, look at a floodplain map, or even review recent minutes from a local board or commission, all of which can probably be found online or through a quick and friendly stop in City Hall.

That said, if you have determined that a formal request is necessary, make sure you do you homework in advance and are as specific as possible about exactly which records you are requesting. It is generally better to start with something specific, and then return to follow up if you learn more or suspect something may not have been included. If possible, also limit the temporal or geographic scope of your request. Remember, also, that agencies are not required to create new records or documents for you (so you can’t necessarily ask for, say, a summary of all transactions related to a specific matter, or a history of the conversations leading to a particular decision) — they just need to let you see what is already there.

In addition, be sure to think carefully about where you are filing the request: each agency or office is only required to search for and disclose records under its own jurisdiction. If you ask the Department of Agriculture for records that are contained over at the Department of the Interior, you won’t get anywhere and you may waste precious time.

Conversely, one area where you may find it helpful to be broader at the outset relates to the format of the records. Since all government records are presumed to be public — not just written ones — FOIA very clearly applies to electronic records as well. But you need to specifically ask for them.

One final point worth noting as you prepare your request: under the law, you do not need to provide any explanation or justification for why you are seeking these records; the records belong to all of us for whatever purpose we have in mind, and there is no reason for you to even muddy the waters by trying to explain how important (or justified or harmless or whatever) your request is. Just tell them what you want, in clear but polite language, and leave it at that.

(Note: the folks at the National Security Archive have prepared a great how-to guide for filing FOIA requests, which goes into a lot more detail that this short summary; see http://www.gwu.edu/~nsarchiv/nsa/foia/foia_guide.html for more.)

Some finer points

  • Be prepared to pay: Unfortunately, most public records are “free as in freedom,” not “free as in beer”: even progressive state laws typically allow government agencies to provide reasonable fees for assembling and copying data, with different fee structures for citizen, commercial, and journalist requests. (Search fees can range up to $50/hour, in addition to standard per-page copies costs.) In your formal request, be sure to indicate whether you are prepared to pay for research and copying, and what the upper limit is for your request.
  • Be prepared to wait: Most requests, even very simple ones, take time. Officially, under FOIA an agency must respond to your request within 20 days, but that does not mean they need to get you everything you ask for by then — this is just the start of the process, which may then continue to take anything from a few days to months or more. In an interestingly-meta2 display of government transparency about government transparency, the Department of Justice has established the http://www.foia.gov website, which tracks all federal agencies and provides data on response times. All this said, the clearer and more specific you can be, the more likely you can get what you need within a reasonable amount of time.3

The future: moving from public records to open data

Of course, government agencies have better things to do than to respond to your requests for information, and you have better things to do than badger them to comply with the deadlines required by law; as a result, many of the costs and delays involved with requests under FOIA seem so unnecessary. Unfortunately, our 18th-century system of laws and associated practices concerning public records seems to be hobbling along in most places, seemingly unaware of the technological changes of the past 300 years. Thus, while nearly all records are now computerized and maintained on networked machines, we maintain an artificial gap (or wall) between record keepers and the interested public.

The emergence of open government data holds enormous promise to address these issues, resulting in both greater accountability for governments and a renewed sense of partnership between citizens and public agencies. Many of the missions found on this site help to explore this potential, showcasing innovative and collaborative ways for people and agencies to work together to put data into action.

Footnotes:

1 As you enter the world of public records and freedom of information, you may actually be surprised by just how much information is public: many Americans confuse the distinction between rights to privacy and the requirements of transparency. For example, who you voted for is private, but whether you are registered to vote — and even whether you voted in a particular election — is public; similarly, your income tax returns may be private, but the value of your house — at least as determined by the local assessor’s office — is public.

2 and somewhat controversial: see http://nsarchive.wordpress.com/2012/03/29/department-of-justice-not-qualified-to-be-foia-ombudsnan/

3 Of course, due to the nature of some requests — and the agencies involved — there are cases where even clear and specific requests are met with unreasonable delays. An audit by the National Security Archive in 2010 found some requests still pending 18 years after being filed.

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