BEFORE YOU BEGIN

Big, long-term request vs. small, focused request

It will most likely take at least a few months [2] to receive any documents from a FOIA request, and usually much longer. Because of this, it is important to consider how much to ask for in your request and whether FOIA is the best strategy for your campaign at the moment.

[2] Depending on the state, you may be able to get certain records more quickly from a state open records request.

A basic question the Center for Constitutional Rights often asks organizers, activists, and others who are interested in using FOIA is, do you want:

• A bigger, more comprehensive set of documents that might require a long- term process?

• A narrow, smaller set of documents that might lead to a quick process?

For example, in the Center for Constitutional Rights case NDLON v. ICE, our client, the National Day Laborer Organizing Network (NDLON), embarked on a nationwide campaign against the ICE program “Secure Communities” and used FOIA to answer key questions about how the program worked. The FOIA request uncovered a large swath of information from ICE, DHS, and the FBI, and by the end of litigation we had received over 300,000 pages of documents. However, the litigation took over three years to complete, with a large legal team filing a number of motions in court, and over a dozen volunteers reviewing documents.

In contrast, the Center for Constitutional Rights filed FOIA requests in 2014 seeking a narrow set of records regarding a Department of Defense policy related to one of our Guantánamo cases. The purported policy was referenced by a government official in litigation, but was not produced, and so we used FOIA to push the government to reveal whether such a policy even existed.

Similarly, in 2017, the Center for Constitutional Rights filed a narrowly-focused state open records request to the St. Charles Parish Sheriff’s Office in Louisiana for records concerning the sheriff’s trip to North Dakota in 2016 to observe the protests against the Dakota Access Pipeline. This was a targeted request done in support of a number of local groups organizing in Louisiana against the construction of new pipelines there. We received some documents within weeks of filing our request, but then litigated for even more documents over the following year.

Key questions to ask before beginning your FOIA request

Is the information you are seeking already in the public domain?

Before you start, it is always good to check whether what you are seeking has already been requested in another FOIA. Take a moment to do a Google search, look at agency websites, and check with partner organizations to see if some or all of the information you are after hasn’t previously been released. Know what is already public and what still might not be can help you in better crafting your own request.

Are you entitled to get documents you request quickly?

If you need documents next week, FOIA will not help you. You should be prepared to wait at least a few months before receiving anything from a federal FOIA request. Some state open records laws allow you to receive documents much more quickly, which is why it might be more strategic to file a state request depending on what information you’re seeking. The FOIA statute allows you to ask for “expedited processing” of your request in certain circumstances, which can potentially speed up your request. However, it can be very difficult to get an agency to grant expedited processing.

We go into more detail on expedited processing in the “Writing Your Request” section.

Will your request be part of an advocacy strategy and/or be of interest to media?

Some organizations we have worked with have used the request itself as an advocacy tool. They have chosen to tell a story about why they are filing the request within the request itself. For example, in the FOIA request that racial justice organization Color of Change did with the Center for Constitutional Rights for documents related to surveillance of Movement for Black Lives activists, we wanted to make sure that stories of how federal law enforcement was targeting and chilling activists were part of our request and accessible to the public. Media outlets are often interested in FOIA and will cover the filing of a request to bring attention to the issue, and potentially at other points in the process, even if you don’t receive any documents.

Using the request as an advocacy tool isn’t always necessary or strategic, but groups and individuals should consider creative ways to do so if it fits with their campaign or organizing.

How will you use the documents you receive?

It’s good to think ahead of time about what you plan to do with any documents you do receive. If you’re asking for data, do you have people ready to analyze that data and write reports? Do you want to publish the documents on a website? Will they be used in “Know Your Rights” trainings for community members? Are there journalists who cover the subject of your FOIA request who might be willing to write a story?

Thinking about possible uses of the information can also help you craft the request with specificity and help you stress that you need the records you are seeking.

Do you have the resources for a longer process, including litigation?

The FOIA process is often slow. It means dedicating resources to managing the administrative process with each agency, waiting possibly many months before receiving documents, reviewing the documents you receive, and potentially being involved with litigation, which can last months, if not years. This can be hard, especially for small organizations with small staffs, and may require outside legal representation.

What about fees – don’t you have to pay for any records you receive?

Don’t let the possible costs of receiving documents scare you. In federal FOIA requests, you can often win a “fee waiver” especially if you are going to distribute the documents for free and in the public interest. However, many states do not allow fee waivers, and it is a good idea to be ready to pay at least a small amount for records you might receive. You can read more about fee waivers in the “Writing Your Request” section.