Why were my FOIA responses so different?
July 16, 2016 10:25 AM   Subscribe

I FOIAed a bunch of agencies in May. I provided all of them with exactly the same information.

Some of them would not grant a fee waiver without more information, others did with what I had provided. Some wanted me to fill out separate forms, most didn't. Some wanted me to contact them to talk about the request so they could "perfect" it, others didn't. Some found responsive records based on my criteria, others said they didn't find any based on my criteria (which I know can mean they didn't like the way I worded the request, so because I wasn't specific enough, they couldn't find anything).

After I had read through a dozen or so, I called a staff attorney at the Department of Justice who had responded to one of the requests. I asked her was my request unambiguous? She said no. Was it clear and sufficient for her office to act on? She said yes.

I came away thinking if a government lawyer was happy, why did so many other agencies have such a hard time with it?

The FOIA website told me what I needed to provide and that's what I provided. Why were my responses so wildly across the board?
posted by CollectiveMind to Law & Government (15 answers total) 3 users marked this as a favorite
Because the agencies' systems and practices aren't standardized? So each has a different way of evaluating and processing the request? Because some offices run efficiently and others don't? Or because, when you drill down to the individuals who receive and process your request, some are helpful, others aren't? Some humans want to do their jobs well and others are just doing the bare minimum to scrape by, and thus you receive poor customer service?
posted by BlahLaLa at 10:32 AM on July 16, 2016 [13 favorites]

why did so many other agencies have such a hard time with it?

My sister works for a state government agency that deals with FOIA requests. And they deal with them poorly because ... they don't want to and they don't have to (note: my sister hates this, she is not part of this organizations issues). More to the point, FOIA is a thing that they need to legally comply with, but the enforcement mechanisms for that compliance are all over the map. Organizations who don't really want to comply can make up all sorts of complications (from fees to just claiming that don't have time to staffing to comply).

Many people think this is unacceptable
but there would need to be another layer of regulatory agency to make compliance more of a consistent thing. It's not you, it's them.
posted by jessamyn at 10:34 AM on July 16, 2016 [5 favorites]

Yup, because you're getting replies from different people in different agencies.

As a government employee who works at the state level, and coordinates with other state and federal agencies, I've seen so much variation in direction and response, even within the same agency, due to differences within individual departments. Heck, the same department can change their view on a topic within a week.

So much is left up to the whims of individuals, even when it seems like it would make sense to standardize operations. Even within standardized operations, different people interpret the same directions and information differently.
posted by filthy light thief at 10:35 AM on July 16, 2016

Each agency has different practices (and you will find this locally -- doesn't matter that it's the federal government, each agency has their own set of lawyers and don't do it all the same way) and the law applies differently since each agency has different responsibilities and deals with different types of documents. I am a reporter that does watchdog reporting on government and every agency or even departments within the same agency are their own animal.

Also, it is a bad idea to ask the attorney who responded to your request to evaluate it; their interest is to withhold records and to interpret your request conservatively (despite what they say about their commitment to the law).

You might be able to find an open records advocacy group or local group that advocates for your state's open records law that can help you figure out how to word your request.

If you want to get the gov't attorney to be more forthcoming, you might ask "how did you interpret my request" and ask about the process by which records requests are fulfilled -- does it stay within the attorney's office? Does it just go through a string of staff?

It also depends on what you are asking for. You might say "i did what they asked" but it's far trickier than that. If you're asking for a specific document "expenses for x project in 2013)" that may make sense but it's kind of an art of finding the sweet spot between vague enough that they can't find a loophole to deny this, and specific enough that they can't say you're going on a fishing expedition.
posted by mmmleaf at 10:38 AM on July 16, 2016 [1 favorite]

Also, you might want to spend some time reading the FOIA libraries, which most gov't agencies have. HUD, for example.

If the records you're requesting might be old, you should check the retention schedule for the agency -- different agencies keep and destroy records at different rates.

Have you used FOIA machine? It's an open-source site where people share their requests and the responses they received from agencies. Maybe you can see if any records you asked for are already out there.

Also, if you can, ask for the records ELECTRONICALLY so they don't try to charge you for mail and a bunch of copies.
You can write it like so:

Format: we prefer to receive records in the following formats, listed in order of preference:
(1) an electronic data format such as a spreadsheet, delimited data set, database file, or similar;
(2) other non-proprietary electronic format;
(3) word processing file, text-based PDF, or similar;
(4) paper copies.
Please also provide any and all documentation related to such electronic records, including but not limited to data dictionaries, database documentation, record layouts, code sheets, data entry instructions, and similar printed or electronic documentation materials.

You can also ask for an index of records to figure out what is in there and what records you actually want out of the possible records returned (to reduce costs).
posted by mmmleaf at 10:50 AM on July 16, 2016 [4 favorites]

What they all said above regarding different agencies having different standards, different missions, and different funding. An agency (or a part of one) whose mission doesn't involve a lot of public-facing activity may have little funding directly available for FOIA, and so may resent the request, and will not know how to respond appropriately in the first place.

Agencies like DOJ get a ton of FOIA requests all the time, and (presumably) they have funds allocated for responding, and clear internal guidance on how to process those requests. Whereas if something came into my office with a FOIA request, I'm pretty sure most of our staff and management would have a hard time figuring out what to do, and would probably respond... poorly. Even if they intended to do the right thing, it would be difficult.

The federal government is huge and the agencies all have their own cultures and processes (and subgroups within the agencies have different cultures!). Very little is consistent across the board.
posted by suelac at 10:50 AM on July 16, 2016 [1 favorite]

This is a simplistic analogy, but if you went into 10 different restaurants and ordered a hamburger from each one in exactly the same way, you would absolutely get 10 very different burgers and experiences. Same thing here.
posted by samthemander at 11:19 AM on July 16, 2016 [8 favorites]

Just last night I had dinner with my friend that is a federal attorney and deals with multiple agencies as they respond to FOIA requests. And our conversation matched what everyone is saying here: different agencies have different policies and abilities, and individual employees may be better or worse at responding.
Once things get to her desk, she can't really make an individual agency or employee respond, but she tries to personally talk to the requester and do what she can to help.
Also, attorneys are constantly frustrated by pro se cases, and maybe your requests aren't responded to a well as if an attorney experienced in the area had drafted them.
posted by littlewater at 11:31 AM on July 16, 2016 [1 favorite]

I provided all of them with exactly the same information.

This is also part of it. Each agency stores information differently, so they require different prompts to find that information. The immigration services will want an alien's A-number and current status and a range of years of activity. The IRS will want the person's social security number and tax years. The FBI will want all aliases and in some cases a set of fingerprints.

Because their databases and files are organized around their processes, you need to provide them the right keys to access that information.
posted by Capri at 11:51 AM on July 16, 2016 [2 favorites]

Fed govt employee here. Your request went to the primary POC at my agency. That person tried to figure out which sub-agency had the record. Then they sent it to that sub-agency POC. That person then figured out I might have the record. I searched. Maybe I found it. Then I sent it to my supervisor who sent it to hers, then it went to our director. He then sent it back to the FOIA staffer. They went over it with their office of counsel. Then they respond to the original request, then they responded to you. What everybody else said above.
posted by fixedgear at 12:06 PM on July 16, 2016 [1 favorite]

Don't underestimate the sheer resentment (partially understandable, mostly not) of FOIA and resulting obstructionism that flourishes in many government agencies.
posted by praemunire at 12:37 PM on July 16, 2016 [3 favorites]

I'm a law librarian, so I spend a lot of time contacting various government officials and asking for information/documents. I hardly ever actually FOIA because it's a pain to go through the official FOIA mechanism and it takes too long to wait for an answer. In the future, if you're asking for something discrete and fairly reasonable, try figuring out who in an agency would be the most likely person to know what you're asking for and just contacting them directly and saying something along the lines of "hi, I'm trying to figure out blah blah blah, you seem like the right person to ask. Can you help me out?" Seriously, like 9 times out 10 people either give me what I'm asking for or refer me to a different person who gives me what I'm asking for. Sometimes I have to prod and send them a "hey, what's up with this request, any chance of getting it?" and they usually respond. 1 time out of 10 they tell me to submit it as a FOIA request. If the agency has a library, also try contacting their reference librarian to see if they can help pull up what you need.
posted by banjo_and_the_pork at 3:56 PM on July 16, 2016 [7 favorites]

In the future, if you're asking for something discrete and fairly reasonable, try figuring out who in an agency would be the most likely person to know what you're asking for and just contacting them directly

Oh, yeah, this! If someone calls me out of the blue and has a question I can answer without too much work, I'm totally happy to help them.
posted by suelac at 9:39 PM on July 16, 2016 [3 favorites]

Response by poster: banjo_and_the_pork, as a matter of fact, I spent a lot of time visiting websites and creating a list of direct contacts so I wouldn't be dropping it on the desk of a non-FOIA experienced person. And I did blog about the fact that I did get timely responses. it's just that I thought that because they were all federal agencies, and since the FOIA website didn't say I needed to tailor each response to each agency's mission, I thought I was good to go.
posted by CollectiveMind at 9:52 PM on July 16, 2016

Oh, what I'm saying is don't even mention FOIA in your initial request. I approach it as if I'm asking for a pretty quick and easy thing, and I don't mention FOIA because I don't want to plant that seed that they can brush me off with FOIA. It's even better if you are contacting someone who's not FOIA experienced, because they're more likely to just shoot you an email with whatever you want as an attachment. Half of my success is just being friendly and playing kind of dumb (I'm a woman and suspect this might have something to with how my friendly but dumb routine works so well....). If you're going to do something like this again, you might also want to visit/call/email/chat with your local law library reference librarian- I think that at the least every state has a public law library (usually where the legislature sits), better funded places have county or city law libraries. They're free, you pay for them with your taxes, and law librarians really really really like to help people. They might be able to help you strategize your requests for maximum effectiveness. I know everyone who's internet savvy likes to do everything on their own, but there's no downside to asking for help.
posted by banjo_and_the_pork at 4:05 AM on July 17, 2016 [2 favorites]

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