What To Do if You Don't Get the Records

If you are denied access to information, you can appeal to a higher authority in the agency and ultimately to a court. Under the federal law you go to the U.S. District Court where you live or where the agency is located.

If you become involved in a dispute over access, issues that may have to be addressed include whether the information you seek is a public records, whether it is exempt or contains exempt information, and what form the agency must disclose it in. Agencies often acquire and file information that isn't considered public records.

State open records laws often say a record is a "public record" only if the agency is required to prepare or keep that record. Therefore, if the city finance agency is not required to keep plans for a building under construction, it doesn't have to disclose those plans even if it has them.

If a record contains exempt information that can be segregated from non-exempt information, it must disclose the non-exempt data. Sometimes you will receive photocopies of records with areas blacked out with black marker. You will have experienced the heavy hand of the agency's FOI officers.

The Information You Receive

The format in which an agency releases information may be critical. As time goes by, more government information is stored in computers. Some state open records laws specifically state that computer data is public record information. Since 1996 the federal FOI Act has required agencies to post certain categories of government records on their web sites and to comply with FOI Act requests for disclosure in electronic formats.

For you, the critical issue is what is useful? A microfiche is useless if you don't have access to a reader. A printout that runs thousands of pages is useless, but a floppy disk of data you can load into a database and search may be invaluable. Therefore, if you know data is stored in computers you should ask for electronic files if you can use them. Also ask if special software is needed to manipulate the files or if the data is in a common format. If you need special software ask how you can get it.

Fees & Fee Waivers

If you are seeking information for news, research or educatinal purposes you get certain fee benefits under the federal FOI Act. You cannot be charged for the time it takes to search for the records and review them, and you get 100 pages of copies at no charge. If you are a commercial requester or are seeking the information for purposes other than those listed above, you pay for search and review time and all copies.

If you are seeking the information for publication and it will primarily benefit the general public you may be entitled to fee waivers and the information might cost little or nothing.

Journalists and others who are entitled to fee benefits or fee waivers should send their request letters on letterhead stationery if possible. Journalists employed by news organizations should have no difficulty demonstrating that they are entitled to fee benefits and that they are likely to publish the information and should be considered for fee waivers. Freelancers should include a list of prior publications or other information demonstrating that they are engaged in news gathering. Explain briefly the purpose for which you are seeking the information and the public benefit disclosure will serve. If you're worried about protecting yourself from being scooped this section of your letter has to be drafted carefully.


Making an FOI Act Request

Your letter should say you are requesting information under the Federal Freedom of Information Act, or the applicable state statute. It should explain what information you are seeking. The narrower the request the more likely you are to get a favorable response and the sooner you'll probably get it.

If you are using the information for news, research or educational purposes, tell the agency that because you may be charged reduced fees or you may convince the agency to waive search and copying fees. I'll talk more about them later.

The agency may respond by providing the information, or may claim the information is exempt, or it may say "the cost for processing your request is estimated to be . . ." and that it will locate and send what it has if you first cough up the cash. Obviously, the first response is the one you most want to hear. You can sometimes facilitate things if you say in your request letter that the you'll pay up to a certain amount for the information, indicating that the agency should go ahead if the cost will not be greater.

There are nine exemptions to the federal FOI Act covering national security data, internal agency policies, trade secrets, predecisional inter- and intra-agency memoranda, personal privacy, law enforcement records, certain financial institution data, and data on oil and gas leases. There is also a catch-all exemption stating that if another federal law makes records secret you cannot get them under the FOI Act. A classic example is tax returns. The IRS Code states that they may not be disclosed and the FOI Act cannot be used to get access to them.

Access to Government Information

Governments, local, state and federal, are horders of useful information, tons of it, rooms full of it, computers overflowing with it.  There's census data, real estate records, court records, product data and lots more.  If you want an idea of how much and what types of government information you might want take a look at Informaiton USA published by Matthew Lesko, http://www.lesko.com.

A large percentage of that information is yours for the asking, if you know who and how to ask. All states and the federal government have open records laws that create a presumption that "public records" of government agencies are open to you unless they fall within enumerated exemptions.  Court records are presumptively public under the First Amendment, common law or court rules, and may be withheld only under limited circumstances.

When you are seeking information the first task is to determine where it might be found.  If more than one agency may have it ask all that are likely candidates. If you determine that a particular federal agency is the likely source you may have to ask its headquarters in Washington, D.C., and its regional office where the data may have been gathered.  A federal agency is not required to search files in all its field offices to comply with an information request.