WRITING YOUR REQUEST

You don’t need to be a lawyer to put together your request. There isn’t one specific way you must write your request for it to be valid. However, we have found it useful to break down a request into several parts. All examples below come directly from FOIA requests filed by the Center for Constitutional Rights. We have also included an annotated request in this guide as an example.

Introduction

You don’t need a long introduction, but here are the elements we include at the beginning of many of our requests:

• State the law – identify that the request is made pursuant to the Freedom of Information Act, 5 U.S.C. Sec. 552.
• Name the people or organizations making the request.
• Summarize what you are seeking.
• Identify which agencies and sub-agencies you are requesting be searched.

Purpose of request

You can keep this short or include a detailed narrative, depending on your strategy. You could even leave out this section. However, if you are hoping to get a fee waiver or expedited processing, it can be helpful to include at least a short summary of why the information you are seeking is important to you, your organization, and/or the communities you work with.

If your campaign objectives require it, you can go further into why you are requesting these records. We recommend citing to news articles or other public information that shows why releasing these records to you is not only important, but urgent.

Wherever possible, show how members of your organization have been affected by the policy or government action in question by citing an article and even individual stories that led your organization to file this request so you could better serve your membership and advocate for them.

Telling a story in your request itself can be a great tool for shaping public narrative about your organization’s issues before you’ve even received any documents. However, other times it might be strategic to keep things simple and not go into as much detail. It all depends on how you choose to use FOIA requests in your advocacy.

Identify the records being sought

Earlier we listed some examples of the types of records you can request. Remember to be creative, but also as specific as possible. FOIA requires requesters to “reasonably describe” the information you are seeking. This does not mean you need to know the names of certain documents, policies, or people, but it does mean you need to be more specific than “I request all emails by ICE agents about detentions.” An example of a more specific request might be: “We seek any and all records related to detention facilities’ compliance with ICE’s Performance-Based National Detention Standards between the years 2013 and 2015.”

It can also be helpful to cite to public documents that might show the existence of the records you are seeking, or how government officials were discussing a certain policy, or other evidence that backs up the reasons for your request. For example, if there’s a recent article in the New York Times where the director of the FBI is quoted discussing the government policy you’re seeking information about, include that in your request.

Specify the format of production

It’s crucial to be specific about how you want any records produced to you. First, you should always say that you are seeking both paper and electronic records. Second, we’ve found that it’s helpful to specify that electronic records are produced in PDF format, and ask for them to be text-searchable. Make sure to also specify that you want “parent-child” relationships between related documents maintained, such as email file attachments produced together with the email with which they are associated. You can also ask for data in its original format, such as spreadsheets in Microsoft Excel format.

Payment and making a “fee waiver” request

Filing your request is free, but government agencies are typically allowed to charge for processing and copying done in response to your request and usually set limits on the amount they charge per page. However, under FOIA you may be entitled to a “fee waiver” so that you won’t have to pay for any of the records you receive.

Federal fee waivers

To qualify for a fee waiver under the law, you need to show a number of things. Primarily, you must show that:

• You or your organization does not have a “commercial interest” in the information.

• Disclosure of the records that you or your organization are requesting is “in the public interest.”

• The information “is likely to contribute significantly to public understanding of the operations or activities of the government.”

You can show the likelihood you will distribute the information by showing you have a history of doing so – whether as a journalist, non-profit or membership organization, or in other ways. It is a good idea to take a look not only at the specific provision of the federal law that provides for fee waivers, 5 U.S.C. § 552(a)(4)(A)(iii), but also at the federal regulation regarding fee waivers of the agency whose records you are requesting.[4]

[4] For a full description of what kinds of request can be granted expedited processing, see 5 USC

Make sure that the explanation you provide about why you are entitled to a fee waiver matches the requirements in the agency’s regulation, and cite the regulation.

State fee waivers

Some state open records laws also allow you to get fee waivers, while others do not. But even if a state’s law and regulations do not provide a detailed process to obtain a fee waiver, you should still ask for one, including telling a state agency that you’re making the request in the public interest and not for any profit or commercial motive.

Additional language on fees to include

Finally, it is good to include language that protects you if your fee waiver request is denied. You can ask agencies that you be contacted if the cost of producing responsive records reaches a certain amount. For example, you can say, “If no fee waiver is granted and the fees exceed $100.00, please contact us to obtain consent before processing additional records.” You can also ask agencies to give you an estimate of how much producing the documents might cost you before they produce the documents.

Expedited processing request

You can also ask federal agencies for “expedited processing” under FOIA. This means that your request would be processed by the agency much sooner than normal. Under the federal statute, expedited processing will be granted if the requester “demonstrates a compelling need.”[5]

When making this request, explain why the public needs to know about the information you are requesting right away – cite news articles, recent events, or reports that help demonstrate the urgency of your request.

One common way to do this is to show that, as an individual or organization “primarily engaged in disseminating information,” the records you are seeking show an “urgency to inform the public” of government activity. As with fee waivers, you should also look at the specific agency regulation that explains what kinds of requests, and by whom, qualify for expedited processing. For example, the Department of Homeland Security allows for expedited processing when “the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual” or when the records you seek are “a matter of widespread and exceptional media interest in which there exist possible questions about the government’s integrity which affect public confidence.” Make sure that the explanation you provide about why you are entitled to expedited processing matches the requirements in the agency’s regulation, and if possible, cite the regulation.

Agencies do not often grant expedited processing, but it is important to request it if you are entitled to it. A denial of expedited processing does not need to be administratively appealed and can be brought straight to federal court.

Unfortunately, many state open records laws do not allow for expedited processing. However, this should not stop you from making an argument that your request is in the public interest and should be processed as soon as possible.

Certification and conclusion

This is an important legal step. Add a line near the end of your request saying everything you have written is “true and correct.” In addition, we suggest reiterating parts of the law that are helpful if your request is denied. Here is an example from a Center for Constitutional Rights’ request:

What the paragraph above is doing is reminding the government agencies (in this case the FBI and DHS, but it could be any agency) that they must explain why they have redacted any information, and that if they do redact parts of a document, they must still provide you with the un-redacted parts of that document.

The language in this example also reminds them of your right to appeal any decision they make – this includes agency decisions about withholding records and also about granting you a fee waiver or expedited processing.

Contact information for any responses

We highly recommend identifying one specific person as the contact for your request. Ideally this is the person who signs the request. Agencies receive hundreds of FOIA requests every month, and the more names and contact information you list at the bottom of a request, the greater the chance of confusion by the agency, which means the person processing your request might just pick someone’s name and address that they see listed and send responses directly to them. The person they choose may no longer be part of your organization, or may not check their email or mailbox that often. So choose someone who will be staying on top of their email and regular mail. It is critical to stay on top of the correspondence that happens after you file a request, because missed deadlines can give an agency legal justification to close your request entirely and can also make it difficult for you if you later choose to litigate your request. Make sure to send one copy of the request to each agency and/or component to which you are directing your request. For example, you might send your request to the FBI, DHS, and ICE.