The Hillard Heintze Investigations team files open records requests frequently through the Freedom of Information Act (FOIA) or state agencies in an effort to acquire key information for our clients. These requests are essential in completing due diligence prior to a business deal or partnership, identifying wrongdoing through a distinct paper trail or simply uncovering general information about a particular subject of interest.
These requests are not limited to our practice; journalists routinely file open records requests, as do politicians, educators, researchers — and anyone else with an interest.
Open Records Requests Can Be a Frustrating Exercise
Although we are often successful at receiving the records we request, it is safe to say that every member of the Investigations team has, at one point or another, been frustrated with a public agency due to substantial delays in processing a request, excessive fees, unnecessary redactions or illegitimate excuses.
In an effort to make your own open records request a bit less daunting — and to further understand the FOIA process and our practice here at Hillard Heintze — here are some useful tips we have picked up over the years.
Tip 1: Be Specific About Your Open Records Request
The more specific the request, the better. Records custodians are busy people who are likely processing multiple requests at a time. If a request is vague, unclear or asking for too many records at once, it is likely that the agency will delay working on it. By specifying the types of records you’re searching for — whether that be internal agency email communications, memorandums, photographs and so on — as well as the specific incident, situation, person or case you’re interested in, you can expect a quicker response from the agency, as you are making the records custodian’s life a bit easier.
In one particular case, we discovered key information by making a specific request for records of an interview (in written or audio format) and we actually received an audio cassette tape of a recorded interview from years prior with the subject of our investigation.
Tip 2: Set Your Price or Budget
Many government agencies will charge for printing costs and hours worked processing a request. To avoid unanticipated fees, we recommend adding a sentence in your request with the maximum amount you are willing to spend to receive the records. Ask that the records custodian contact you before continuing to process the request if the price will be higher than you have indicated. If you are expecting there might be a large volume of records, you might even consider sending a pre-labeled FedEx or UPS package. On the flip side, one agency actually required that we send a nickel – yes, through the mail – before they released any documents to us.
Tip 3: Know the Law and Exceptions
Before drafting a request, familiarize yourself with the relevant state or federal public records laws. By doing so, you will know when an agency is giving you an illegitimate excuse for denying access to records and information. If the agency does not comply with your request, ask that it cites in writing the specific statute(s) that warrants the denial. If you still feel like you have been wrongfully denied, don’t be afraid to appeal, as you have the right to do so.
In one recent case, we were denied the results of a FOIA request because a juvenile’s name appeared on the record. While we agreed with the assessment regarding the juvenile’s name, we argued that we should still have access to the record relating to our subject (who is not a juvenile) and that the report should be sent to us with the juvenile’s name redacted. We swiftly won the argument and the report we received provided invaluable information about our subject of interest.
Tip 4: Look Up Open-Source Information Online First, but Be Skeptical
Before drafting an open records request, do some research to see if the information is already available online. Websites such as FOIAMapper, MuckRuck and DocumentCloud allow users to search for documents that news organizations and individuals previously requested. But, you need to be skeptical when looking at records online, as they can be incomplete. For example, a client recently asked us to look into campaign contributions made by an individual during a particular campaign year. As I was reviewing a campaign financial report online, I noticed that some numbers didn’t quite add up. When I called the election board in this particular city for clarification, I was told that multiple pages of the report were only available to view via an open records request.
Tip 5: Don’t Assume That Your Request Will Be Private
Before filing a request, be aware that some agencies make their open records requests public, or even post them to their websites. For example, Congress passed the FOIA Improvement Act of 2016, which requires a federal agency to post records online if they have been requested multiple times. Additionally, know that an individual can ask to view your open records request. So, if you don’t want for someone to know that you filed a request, do some research and check to see if the agency will make it available to the public.