The FAA is joining other federal agencies in revising the status of previously disclosed documents from "open" to "exempt from disclosure," apparently taking off of its website a report from a meeting it held with pilots regarding the rules for air travel in the DC environs.  Recall that no-fly zones were imposed around the nation’s capitol after 9/11. The document, which was previously open-access on www.faa.gov, was actually a transcript of that meeting in which the rules establishing the no-fly zones were soundly ridiculed by private pilots, who pointed out various inconsistencies and puzzling results (briefly discussed in the above-linked article on AirportBusiness.com). NPR’s Alex Chadwick and Slate’s Steven Aftergood discussed the ongoing efforts of the Bush Administration to reclassify previously-disclosed documents recently on NPR’s "Day to Day"; the Slate commentary can be read here.

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For the FOIA requesters of the world (and that means all of us, from time to time), I offer the following advice on how to avoid a bad result when asking for documents from a government agency.

  1. Direct your response to the correct individual/agency. While any document in government possession comes within the ambit of our SC FOIA definition of "public record," that doesn’t mean that the airport is the best source of TSA information, for instance. That’s a lousy example. Here’s a better one: A local PD has correspondence from the state’s bureau of investigation on a particular case. The correspondence, even though originating from the SBI, is a public document as requested from the PD. But if you want the broadest selection of documents from the SBI, direct the request to the SBI. (Follow up with the PD, to your heart’s content, and I acknowledge the wisdom of a multilateral approach in some cases.) More basically, though, call and ask the question: "To whom should I address a FOIA request for this kind of document?" It will save your request travel time, and hence response time.
  2. Define your request appropriately. "All documents" is a nice lawyer trick and good and useful as a discovery tactic, but what follows those two words is going to be crucial to the success of your request. Think about the information you’re really looking for. Don’t ask for "all records" if what you really want is "all records pertaining to this ordinance dated between January 1 and March 15," for instance. This is just common sense – if you cast your net too wide, you’re going to be a long time reeling it in. Help us help you. Be specific.
  3. Print legibly. Some of you need to go back to Handwriting 101. That’s all I’m saying.
  4. Be prepared to pay fees – call ahead of time and ask what the cost will be. A request for what turns out to be the entire file on a subject, consisting of 500 pages, 20% of which is privileged and must be redacted – that takes time. Time away from other responsibilities. And paper – lots of paper. And in Horry County, if it’s over 30 pages and/or takes me longer than half an hour to copy? You’re going to pay the cost of reproduction. Statutes generally allow for the recovery of fees to recoup the actual cost of complying with the request. Alternatively, if it’s a large amount of material, consider asking for access to the files on the office’s premises. Sometimes, that’s easier on all parties concerned than waiting for copies in the mail.

And, just so you know, I’ve been around the FOIA block on both bicycles from time to time. I acknowledge there are less-than-helpful people out there in the real world, and some of them find their way into government employment. During one instance, I asked my former assistant to call the clerk to council’s office of a local municipality, that shall remain nameless, to ask for a faxed copy of an ordinance the city had recently enacted. We were preparing a similar ordinance for the County’s consideration, and I needed to know what the City had said on the subject. Easy enough, right? Three hours later, she came into my office, fury in her eyes, and said, "I was referred from the clerk’s office to the City Manager’s office. There, I was told the person wasn’t in, call back after lunch. I called back after lunch, and the person I’d been directed to transferred me to the city attorney’s office, and THERE some lawyer told me that if you thought he was going to interpret that law for you, you were crazy!"

I finally got my fax, after reassuring the lawyer in question I could do my own legal interpretations, thanks. So – my final tip?

5. Be patient with us, and don’t paint the good ones with the same brush you used to tar and feather the less-than-helpful folks. ‘Nuff said.

The FOIA Blues, Part 2

December 1, 2005

Here are Hodes’ points, in capsule form, paraphrased as positive suggestions and directed to any government employee responding to FOIA requests:

  1. Send out acknowledgment letters.
  2. Double-check fax, email, and snailmail addresses to make sure you’re sending to the right place.
  3. Have the person preparing the FOIA response get the documents from the department or agency that has possession in a timely manner.
  4. If you have adjudicatory authority over an appeal, apply the law and don’t just rule in favor of the FOIA responder just because you like him/her or want to keep your job.

Um. OK. Let’s take the least complex first.

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The FOIA Blues, Part 1

December 1, 2005

Boy, when Scott Hodes says he’s cranky, he means it. I count three references to firing, one to the death penaly, one "no excuse" and one appeal to the classic "it’s your taxpayer money paying their salaries" argument, all in the space of one five-paragraph column up at LLRX.com titled "FOIA Facts: Four Really Bad Habits."

Now that the math’s out of the way, but before I go Paul Harvey on you with the rest of the story (ed. note: by the way, I’m ashamed to admit, I thought he’d passed away some time ago, so – yay! Glad you’re still kicking, Paul. My dad was a big fan. And you with the Medal of Honor, no less! Way to go. OK, I’m done now.), allow me to recite Mr. Hodes’ credentials, from his website:

Prior to entering private practice in early 2003, Scott A. Hodes spent over a decade working as an attorney for the federal government.  Mr. Hodes worked for the Department of Labor, Department of Justice (Office of Information and Privacy) and the FBI.  From 1998 to 2002 at the FBI, Mr. Hodes was the Acting Unit Chief of the Freedom of Information/Privacy Act Section’s Litigation Unit and was a Top Secret Classification Authority.  Mr. Hodes has been involved in thousands of FOIA and Privacy Act matters. Mr. Hodes is admitted to the bars of the District of Columbia and the State of Maryland, the United States District Court for the District of Columbia and the United States Court of Appeals for the District of Columbia.  Mr. Hodes is a member of the American Society of Access Professionals and a contributor to a number of publications on matters dealing with government information policies and practices.  Mr. Hodes currently practices civil matters, focusing primarily on the Freedom of Information and Privacy Act. Mr. Hodes received his J.D. from Arizona State University in 1989 and his B.S. in Accounting from Indiana University in 1986.

Um, OK. So he knows a whole lot more than I do about FOIA. Point taken. Yeaaaaahhhh, but …. (you knew there was a but, right?)…

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