The Keys to a Successful FOIA Request

Want access to James Comey’s private memos detailing his interactions with President Donald Trump? Yeah, so do we. But if you submit a FOIA request for the memos to the FBI or DOJ, it’s pretty much guaranteed to be rejected. Ours was, along with everyone else’s.

In most cases, though, the outcome of a public records request isn’t such a foregone conclusion. Indeed, researchers have found that you can improve your public records request’s chances of success by following a few specific strategies. They’ve even created a tool that allows you evaluate your odds of success before you send your request out.

Test Your FOIA Request's Chance of Success Before You Send It

FOIA, or the Freedom of Information Act, is based on the idea that the public should have access to government documents created with public tax dollars. “Disclosure, not secrecy, is the dominant objective of the Act,” the Supreme Court has explained.

Be that as it may, disclosure is not guaranteed. Not only does the act exempt certain types of information—classified national security information, for example, and information about wells—but delays and administrative backlogs can lead to requests that simply go ignored. During Fiscal Year 2014, for example, more than 200,000 FOIA requests went unanswered. (Maybe the agencies could use a more efficient response strategy.)  

What set apart successful requests from those that ended up in the shredder? Researchers have some ideas. Three computer science students, Nicholas Dias, Rashida Kamal, and Laurent Bastien, from the Columbia Journalism School, analyzed 33,000 FOIA requests made to the EPA, the Department of Commerce, Customs and Border Protection, the Navy, and the National Archives between 2011 and 2016. Only 23 percent of those requests were granted in full, the same rate for federal agencies, and most requests took about four months to complete.

The researchers’ analysis identified a few characteristics that set successful records requests apart. The first key: Make your request substantive. A surprising amount of requests are about the length of a typical tweet and the average request was a paltry 42 words. “Exceptionally short requests,” the trio found, were granted only 17 percent of the time, while 29 percent of more substantive requests succeeded.

Second, links help. Requests that included links to a website to offer context and clarity, increased the chances of success by 13 percent, from 23 to 36 percent. Similarly, those who listed specific identification numbers for facilities or documents when making a request to the EPA, saw a 22 percent higher success rate. The lesson: it helps to know the organizational structure of the agency. (FOIA.gov can help, as can calling the agency’s FOIA officer and simply asking.)

Finally, ask for “data.” The researchers explain:

Requests that specifically asked for “data” were given full grants at a markedly higher rate than others—36 percent as compared to 23 percent. That said, the power of this effect varied considerably from agency to agency: Whereas data requests sent to most agencies were at least 12 percentage points more likely to receive full grants, these requests only saw a 4 percentage point bump when sent to the Department of Commerce.

A FOIA Crystal Ball?

Building on that analysis, three more data-minded public records fans put together a helpful online “FOIA Predictor” that estimates a request's chances of success. The app, created Rachel Downs, Ian Greenleigh, and Dashiel Lopez Mendez of data.world, is based on requests made by MuckRock, the non-profit government transparency organization, across 2,400 federal, state, and local agencies. The researchers claim that their algorithm is 80 percent accurate.

To test out a request, you simply copy and paste the text into the field, select an agency, press a button, and, presto-chango, out pops your prediction, based on factors like average sentence length and the specificity of the request. You can also see how the odds of similar requests change across agencies.

For example, we tested the predictor out with one of our favorite FOIA requests ever, a request for complaints against the online dating website Match.com, submitted by Inkoo Kang to the FTC. That request unearthed a lot of depressing grievances about online scams and fake lovers—and automatic billing policies that seemed impossible to cancel—but also some gems. There was the mother who set up her son’s dating profile but couldn’t find him love, and the woman who complained to the FTC (in all caps in the original) that “out of all the lesbians across the United States nobody sent me a hello or a wonk.”

Here’s the request Kang used:

To Whom It May Concern:

This is a request under the Freedom of Information Act. I hereby request the following records:

I would like copies of all complaints to the Federal Trade Commission regarding the following companies:

www.match.com

I also request that fees be waived as I believe this request is in the public interest. The requested documents will be made available to the general public free of charge as part of the public information service at MuckRock.com, processed by a representative of the news media/press and is made in the process of news gathering and not for commercial usage.

If fees cannot be waived, I would appreciate you informing me of the total charges in advance of fulfilling my request. I prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to your response to this request within 20 business days, as the statute requires.

Sincerely,

Inkoo Kang

That request had a 32 percent chance of success at the FTC, according to the FOIA Predictor.

The results aren’t perfect, of course. The app only looks at the superficial features of a request, such as length and the number of nouns used, rather than the substance, and it doesn't seem to consider FOIA’s exemptions. Asking for classified national security information in the above request, rather than complaints, results in no change in the odds of success, for example. However, the app could help you identify some general ways to increase your request’s chances.

Before you submit your next public records request, it may be worth playing around with the predictor. It could help you fashion a more successful request—or at least tell you if your odds are better than average.

FOIA and "Beetlejuice": A New Approach to Public Records Requests?

The Freedom of Information Act seeks to ensure public access to federal records. Tim Burton’s 1988 film “Beetlejuice” tells the tale of a crude, comical ghost summoned from the netherworld when his name is repeated three times. You know, the one with Gina Davis, Michael Keaton, and a young Winona Ryder.

What do they have in common? 5 U.S.C. § 552(a)(2), of course.

That’s the FOIA provision instructing federal agencies to post records online after they have been requested at least three times, à la “Beetlejuice.”

Now, several groups are coordinating to make simultaneous FOIA requests to ensure that government documents remain public and on government websites. They’re relying on FOIA’s “‘Beetlejuice’ provision,” or as you might know it, the Act’s “frequently requested records provision.” These activists, if successful, may have found a new way to protect public information in uncertain times.

Introducing FOIA’s “Beetlejuice” Provision

The Center for Biological Diversity, the Center for Media and Democracy, and the conservation biologist Stuart Pimm, Ph.D., announced they were engaging in coordinated requests to prevent environmental data sets from being removed from federal websites. The requests seek hundreds of data sets from eight federal agencies, requesting information on everything from oil projections to the status of endangered species populations.

"We realized there was this relatively new and untested provision of the Freedom of Information Act."

The organizations were inspired by post-election data rescue efforts and “realized that there was this relatively new and untested provision of the Freedom of Information Act,” Amy Atwood, an attorney with the Center for Biological Diversity and Legal Director of its Endangered Species Program, told Logikcull.

Not everyone refers to the frequently requested records provision as the “‘Beetlejuice’ provision,” of course. In fact, Atwood acknowledges the name is a newly coined term. But it’s a name that makes sense.

The 2016 FOIA amendments officially established the “rule of three,” requiring federal agencies to “make available for public inspection in an electronic format” those records “that have been requested 3 or more times.” That rule of three was actually based off earlier DOJ guidance that agencies should post thrice-requested records online -- and it bears a fair resemblance to the invocation of Beetlejuice.

“When people get it, they really get it,” Atwood says.

Testing a New FOIA Tactic

The “Beetlejuice” approach, submitting three requests at once, is a novel one. But that doesn’t trouble Atwood. “The overriding concern that we had and continue to have is that this information is in jeopardy. That’s exactly the kind of thing that FOIA is designed to prevent from happening.”

However, the Center for Biological Diversity and its collaborators might have their work cut out for them.

“It’s pretty clear that federal agencies used exemptions to hide information under the Obama administration, played all sorts of different games to hide information,” David Cuillier, Director of the University of Arizona’s School of Journalism, tells Logikcull. “I think most people expect that it is going to get worse” under the new administration, he says.

Cuillier should know. As a journalist, academic, and former president of the Society of Professional Journalists, he’s built a career around FOIA. Some of his most recent research found that many freedom of information experts believe that public access is worse today than four years ago and that nearly nine out of ten think it will get worse in the future.

Too Coordinated?

It’s unclear whether the environmentalists’ coordinated approach to FOIA requests will be successful. One entity submitting three separate requests to game the system would “skirt the intent of the law, and I’m guessing the courts wouldn’t uphold it,” Cuillier says.

But when three groups work together to request government records simultaneously? “How coordinated it is will be the question,” according to Cuillier.

“I’ll be curious to see how it plays out.”

The requesters, however, are eager to test out their “Beetlejuice” tactic.

“We didn’t feel that it was in the public’s best interest,” Atwood says “to send in a request and then hope and wait that two other requesters sent in the same request.”

An Increasing Focus on FOIA -- And Increasing Backlogs

“We’ve recognized, particularly as we’ve grown, how important FOIA is to our work.”

The Center for Biological Diversity, among other groups, has increasingly turned to FOIA as part of its advocacy. The Center’s FOIA docket has grown from 100 active FOIA requests a few years ago to nearly 280 today, covering everything from Scott Pruitt’s emails to the loss of government webpages. A fair amount of those, roughly 5 percent, are being or may need to be litigated.

“We’ve recognized, particularly as we’ve grown, how important FOIA is to our work,” Atwood says.

But more requests don’t always mean more production. The federal government responded to 454,911 FOIA requests in part or in full during FY 2016, for example, and that’s just a fraction of the 788,769 FOIA requests received during that same period.

“By and large, the FOIA coordinators are doing a really good job, and we have good relationships with most of them,” Atwood attests. The administrative backlog can be explained by a lack of resources, training, and “political game playing.”

“A lot of agencies are getting very good at gaming the system, essentially using the law as a tool of secrecy instead of transparency,” according to Cuillier.

“This is critical information that the public should have,” he says. “And we shouldn’t have to play these games to protect it. That’s the scary part of all this.”

Reducing FOIA Roadblocks

“You don’t need more money necessarily” to comply with FOIA’s requirements, according to Cuillier. “Proactively putting information online could save a lot time.”

Making use of technology can help too. “A lot of agencies are in the stone age when it comes to technology, using fax machines and nine-track tape drives, thinking that giving .pdfs out satisfies the requests for data,” Cuillier explains.

“There are techniques and tools” that agencies can use “and definitely using technology smartly will save taxpayers a lot of money and requesters a lot of time.”