Lesson #3: Be Nice!

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TL;DR: Be cordial, assert your rights only when necessary, and give them the benefit of the doubt until they no longer deserve it.
 

In FOIA Lesson #2, I described the importance of being as specific as you can in your request for the purpose of easing the amount of work — and therefore reducing the cost — necessary to fulfill your request. I cautioned against being too specific, as that could backfire and actually result in higher costs on your end.

In this post, I’d like to extend the message from FOIA Lesson #2 to remaining polite with the records officer — the person coordinating FOIAs — throughout the course of your request.

Records officers deal with lots of different people. The vast majority of FOIA requests are filed by corporations to further their business interests. I have heard that only about 10% of requests are filed by citizens — journalists, lawyers, activists, etc. Some are filed by everyday people who just want to know more about what’s going on in their community. Some are filed by people who demand documents, immediately, at no cost. And some are filed by people with mental health issues who are convinced that they are being spied on and may harass records officers until they are given the nonexistent proof.

This is all to say that handling FOIA requests means working with people, and people can unfortunately be very difficult to work with, as anyone who has had a customer service job knows.

So you want to be refreshing. You want to start off by making a request for specific information to help the records officer help you. You want to anticipate what questions they will ask (an inevitable one, for example, is “what is the time frame you are seeking records for?”) and answer them in advance, in your original request.

From there, you should aim to respond promptly to any questions or concerns they have. That allows the request to move forward quickly. Don’t accuse them of stonewalling or ignoring you until you have a good reason to make such accusations. Presume that they are acting in good faith.

You will find that records officers will remember you when you file future requests, and they might even be quicker to give you the documents you want. Maybe that’s not right — people who are rude still have a right to have access to public records just as much as you do — but remembering that there are humans on the other side of the conversation helps grease the wheels of transparency. And who likes rude people anyway?

That’s not to say that agencies don’t act in bad faith. The FBI, for example, is notorious for stonewalling FOIA requests and straight up lying by saying they don’t have documents they they definitely are in possession of.

I’ve had my own bad experiences with agencies. In particular, I’ve had really dissatisfying interactions with the Boston Police Department, the Massachusetts State Police, and others. They have taken years to fulfill a fairly straightforward request, denied records based on questionable grounds, and have charged absurd fees.

When it starts to go badly, I suggest not being afraid to be cordial yet firm in your correspondence with them. Don’t be afraid to appeal if that’s an option in your state. If they charge an exorbitant fee, and you’ve filed identical requests with other agencies, point out to them that other agencies have provided the information for free or for a much smaller sum. I don’t recommend threatening to sue if you’re not willing to follow through with it, but that’s another option as well. Ideally, your initial politeness and their cooperation will avert such an outcome.

But those poor experiences are hardly as memorable as my numerous fantastic interactions with the records officers at other agencies like the USDA. They seem to take FOIA seriously. They will engage in a back-and-forth to clarify the scope of your request, and they’ll frequently arrange conference calls where you can interact with the records officer handling your request and the office of the USDA most relevant to your request, to figure out how to match what you’re seeking with what they’ve got. And they’ll provide you hundreds of pages without any fees. (Special shout out to Christine!)

So in conclusion: be polite, respond quickly to their clarifying questions, and give them the benefit of the doubt. Hopefully, this will be successful in avoiding an adversarial interaction. However, if you have good reason to believe the agency is running afoul of public records laws, don’t be afraid to flex some muscle.

 

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