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  • Insightful FOIA tips from ‘FOIA terrorist’ Jason Leopold at NICAR 2016

    Jason Leopold

    It’s impossible to say enough good things about NICAR 2016, a journalism conference in Denver where more than a thousand attendees honed their data-wrangling skills. NICAR is all about finding good stories in data.

    But what stood out for me was a talk by investigative reporter Jason Leopold of Vice News about using the Freedom of Information Act to get your hands on that data in the first place.

    “The Freedom of Information Act has become a very important tool for me,” said Leopold, who writes about the secretive world of national security where few people are willing to speak on the record.

    To bypass those road blocks, Leopold began relying on FOIA to dig up public records and unearth good stories. Over the years he’s learned about the intricacies and pitfalls of FOIA. He’s been so prolific, a federal bureaucrat referred to him in an email as a FOIA terrorist. Leopold liked it and the nickname stuck.

    “I file FOIA requests probably several times a week,” Leopold told several hundred journalists who packed a conference room at the Denver Marriott City Center on March 10.

    Here’s what Leopold learned about FOIA, a law written nearly a half century ago that has its flaws — but can still be a powerful tool:

    Speed up the FOIA process

    One downside of FOIA is the backlog of open records requests at many federal agencies. It can take months, even years, to get anything.

    It’s crucial for reporters to build a template — a template that describes exactly where you want these agencies to search.”

    To speed up the process, Leopold said it’s important to explicitly explain in your FOIA request not only what you’re looking for, but where it’s located at the agency.

    “It’s crucial for reporters to build a template — a template that describes exactly where you want these agencies to search,” Leopold said.

    Every federal agency has “systems of records” that are usually public and list where they are keeping certain databases and documents in their vast bureaucracy.

    Let’s say you’re looking for emails about the German auto manufacturer Volkswagen and how it rigged emissions tests. You send a FOIA request. “The EPA is a large organization, obviously,” Leopold said. “So just sending it to the EPA would not necessarily get you the info you’re seeking in a timely manner.” Leopold said you could speed up the process, potentially trimming off months of delays, if you tell the EPA where to search.

    This tip is also a bit empowering. Once the agency notices you know what you’re doing, it’s harder for it to blow you off.

    For the FOIA analysts handling your requests, “if you’re not telling them what to do, they have to figure it out,” Leopold said.

    Leopold also singled out the FBI.

    “The FBI is the worst agency in the government when it comes to responding to FOIA,” Leopold said. The FBI has a 100 million records, and how it searches those records matters.

    “Whenever you file a request with the FBI, you should always ask them to conduct a cross-reference search,” Leopold said. “That’s a separate filing system. And an ELSUR search — electronic surveillance database search. And oftentimes, the FBI will have documents in cross-reference files.”

    For example, after Maya Angelou died, Leopold filed a FOIA request to see what files the FBI had about her. “They responded by saying, ‘We didn’t find any records.'” Leopold said. “So I appealed and said, ‘You guys did not conduct a cross-reference search.’

    “And they went back, the did a cross-reference search, and the gave me these cross-reference files, which were actually really fascinating because these cross-reference files had to do with an investigation into communist activities in the ’60s. And there was Maya Angelou in this file.

    “So it really sort of helps to get those documents and get that type of material,” Leopold said. “It will really also help, if you’re reporting on a story, to gain a wider knowledge of how the FBI conducts its activities.”

    Appeal everything

    I cannot stress enough how important it is to appeal every response that you get.”

    FOIA has an appeals process, and Leopold uses it all the time.

    “I cannot stress enough how important it is to appeal every response that you get,” Leopold said. “Even if the agency turns over everything you want. There may actually be more. I appeal everything.”

    An example: For a story about the Obama administration scuttling FOIA, Leopold heard rumors about the Federal Trade Commission being involved. He filed a FOIA request and they sent about 30 pages.

    “I appealed it. They said, ‘Oh, we found 900 more pages.'”

    When you appeal, you don’t need to make a compelling legal argument. Simply write, “I appeal the integrity of the search.” It’s also very important to appeal any and all redactions. “You will really be surprised by some of these responses,” Leopold said.

    The meta FOIA

    File a FOIA request for the processing notes to see how the government agency is handling your initial FOIA request. It’s a way to gain a great understanding about how the FOIA process works.

    Leopold said there’s a paper trail from the moment your request lands on an analyst’s desk that shows how your request is being handled. Processing notes sometimes have names of databases that are undisclosed, which could be valuable to your reporting.

    “You get a good understanding of what’s going on behind the scenes,” Leopold said.

    Leopold advised to wait about three or four weeks after receiving your FOIA case number to file this “meta” FOIA request. “I think those processing notes are hugely valuable,” said Leopold, especially for reporters who cover national security where it’s so difficult to obtain information.

    A great resource

    One thing that frustrates Leopold is that many reporters don’t know about a great resource: OGIS, the Office of Government Information Services.

    This office is the “federal FOIA ombudsman” that provides mediation services for citizens dealing with federal bureaucracies. They can help you if an agency is stonewalling.

    “They’re waiting for that phone call,” Leopold said of OGIS. But all too often, journalists aren’t picking up the phone.

    “It’s not used as often as it should be,” Leopold said. “It does not cost anything. I’ve used their services before suing. They’ve actually been able to get documents for me.”

    Expedited processing

    Under FOIA, the burden is on the requester to prove there is a need for the information to be released immediately.

    The easiest office to be granted expedited processing is the Justice Department, even though they suck at FOIA.”

    “Each agency is different with regard to expedited processing,” Leopold said. “The easiest office to be granted expedited processing is the Justice Department, even though they suck at FOIA,” Leopold said.

    It doesn’t always work out the way you want. For one request, Leopold was granted expedited processing but still had to wait two years to receive what he asked for.

    “So much for expedited processing,” Leopold joked. But he said it’s always a good idea to ask for expedited processing and figure out how to make that case. What is that pressing need? How would the public be harmed if that information was not out immediately?

    Do your homework

    FOIA logs: Read them regularly. Most agencies post their FOIA logs of past requests and responses on their website. You can actually see what other people are asking for, get ideas, and save yourself some time.

    You can also check a website called FOIA online, which allows you to conduct keyword searches of multiple agencies and read any documents that were released.

    It’s OK to sue

    Leopold said there’s a myth that it costs hundreds of thousands of dollars to sue the government to resolve a FOIA dispute.

    “If you are looking for a highly classified document, yes, be prepared for a fight that’s going to take many years,” he said. But otherwise, it’s not so bad. You or your news organization file a suit, and then life gets better. The litigation helps speed up the FOIA process if the agency is dragging its feet.

    It’s a sad reality about FOIA. It remains broken. We’re left having to litigate for documents that belong to the public.”

    “Basically what happens after filing a lawsuit, you kind of go to the top of the pile,” Leopold said. “You end up working with a government attorney, and you come up with a production schedule.”

    Leopold said FOIA litigation doesn’t cost as much as some people might think.

    “The costs are really minimal,” he said. “I mean, four digits. It’s a sad reality about FOIA. It remains broken. We’re left having to litigate for documents that belong to the public.”

    Fee waivers

    To save money in open records costs, you need to ask for a fee waiver and make an argument as to why you’re entitled to it. You can write: “I’m a reporter. I publish regularly. I am going to use these documents to write a news story about this issue. I should be entitled to a fee waiver because it is in the public interest.”

    When writing your request, be sure to use the phrase “any and all records relating or referring to …” That’s very important language, Leopold said. Don’t say you want documents “about” something. Agencies can deny your request, claiming they don’t know what you mean.

    By law, every agency also has to provide you with an estimated date of completion. You can request that, and if they fail to provide it, that can help your cause if you need to later appeal or file a lawsuit.

    Keeping track of it all

    You know, I’m not patting myself on the back here. I’m really successful.”

    “I have more than a thousand outstanding (FOIA) requests,” Leopold said. He makes sense of the chaos by using a “very simple” spreadsheet that includes the date of the request and when responses are due.

    What’s Leopold’s success rate?

    “You know, I’m not patting myself on the back here,” Leopold said. “I’m really successful. I turn all of this into news.”

    What’s amazing about getting records through FOIA, Leopold said, is that sources are suddenly willing to talk once documents are unclassified and released publicly. It’s tedious work — but it pays off.

    “It has become a very important tool for me,” Leopold said. “But yeah, I have a very good success rate.”