FOIA Facts - What I’ve LearnedBy Scott A. Hodes, Published on January 13, 2013
Esquire Magazine has a regular feature with celebrities entitled What I’ve Learned. As I enter my 10th year in private practice after 12 plus years working FOIA for the government, I thought it would be a good time to do my own What I’ve Learned.
There are many good people working FOIA in the government, and many good people in the requester community. However, there are some rotten apples in both groups that ruin it for everyone. No matter what side you are on, you have to power through the tough ones and know that they are the exception, not the rule. I am always surprised when I make a FOIA request on my law firm’s letterhead that deals with some obscure matter and the agency thinks I have some type of personal interest in it. I make requests on all kinds of topics - trust me I don’t have a deep seated interest in all of them. I am just trying to assist my clients through the FOIA process, which isn’t as simple as it should be.
Requesters do not realize that their biggest obstacle to having their requests processed in a timely manner is not usually FOIA offices. The biggest obstacles tend to be the program offices that have equity in the records sought, and the agency executives who see FOIA offices as an expense they don’t want to fund. Politicians love to say they that love openness. Most wouldn’t know openness if it hit them square in the head.
There is something to say for moving people from their top career jobs from time to time. What you lose in institutional memory may be gained by new blood and new ideas. Of course, the flip side may be true and the devil you know may be better than the devil you get.
A strong leader in FOIA issues with the power of the White House would be the best thing for everyone concerned. I’m not hopeful that will ever happen. Sometimes the only way to get the attention of an agency is to sue. However, it’s expensive. My clients are always surprised when I tell them even if they get documents, they will not always get attorney fees.
I’m still surprised after all these years that the big media companies have no idea how to prosecute FOIA requests in an efficient manner. A big law firm in 1975 may have been the way to go but that’s not going to do it in today’s economy. One of my biggest worries about the future of FOIA is that those processing FOIA won’t get the necessary training that they need. There is no substitute for real in-person training; however with the GSA scandal and agency cost-cutting, those opportunities are getting fewer and fewer.
Phone lines and websites to check status of a request are a good thing, but only insofar as phones are answered and websites are updated. It’s much like the Seinfeld episode where Jerry goes to pick up his rental car – they know how to take a reservation but not necessarily how to keep a reservation. Having a phone line and/or website isn’t the same as making the process actually work.
FOIA portals won’t process requests; you still need a human being to eyeball the documents and interpret the request letter.
OGIS [The Office of Government Information Services (OGIS) is a Freedom of Information Act (FOIA) resource for the public and the government] is a good idea, and from a requesters perspective, it is always nice to be able to bounce problems off a neutral government party. They don’t always say you are right, but have helped narrow issues.
It’s always interesting to see what new request walks in the door. I’ve learned about all kinds of strange topics. When I was at the FBI, I loved processing Mafia files, it was like being paid to read the Godfather.
Try to be courteous when talking to government workers. Sometimes, it’s hard and I’m not perfect, but I do try.
As another new year begins, I can say with certainty: I didn’t find FOIA, FOIA found me.