When officials deny your public records requests, turn “no” into “know,” as in “right to know.”
Below are 10 common reasons agencies rebuff freedom of information requests and ways to prevail that FOI Committee member Charles Davis and I developed for the SPJ newsroom training program. When it comes to open government, don’t take no for an answer.
1. “What law says I have to give it to you?”
You don’t have to prove that you have a right to the information. The agency has to prove that you can’t have it by citing a specific statute that prohibits its release. The presumption is that records are open unless there is a law that states otherwise.
2. “Your description of the documents is inadequate.”
Give the agency the benefit of the doubt and rewrite your request. Talk with the agency bureaucrats to determine exactly what records they have so you can be specific: “I would like copies of the 2353-B files from 2000 through 2007.”
3. “The records don’t exist.”
Do more research, such as talking to clerks and data managers in the agency, to find what you need. Sometimes officials are unaware that they even have the records. Find news reports, hearings or court files that reference the documents, and see if another agency has the information. Find out if the agency keeps an index of its records.
4. “The record includes private information, so you can’t have any of it.”
The agency can’t withhold an entire document because some of it is exempt. Officials must redact the information that is exempt by blacking it out with a pen or deleting it from an electronic file.
5. “We would like to give it to you, but an exemption in the law says we can’t.”
Most exemptions are discretionary, not mandatory; an agency is not required to withhold information unless there is another statute that specifically restricts disclosure. You can argue the information should be public, even if an exemption says it may be closed.
6. “We don’t have the staff or time to get that for you.”
Lack of resources is not legal justification for denial. However, it might speed the process if you narrow the request or volunteer to help look through the boxes and make photocopies. They might refuse your offer of aid, but it deflates their argument.
7. “OK, OK. Here are your records. That will be $1 million, please.”
You should be able to view the records for free.
If you want copies, which they can usually charge for, narrow your request, ask for it in electronic format, or use a digital camera or portable scanner to copy the records at the counter.
8. “No problem. Just sign this contract to promise you will use it appropriately.”
Few reporters are willing to sign such agreements because they create a special right for journalists over citizens. Exemptions usually don’t allow for such requirements.
9. “We don’t know how you might use it.”
Tough noogies. In most states, a request can’t be denied based on who the requestor is or how the information will be used (except in the case of commercial mailing lists in some states). Tell them: “I wouldn’t want to determine the story before I have all my facts.”
10. “We don’t care what the law says. You aren’t getting it.”
Appeal. Send a stern letter from your organization’s attorney. Tell readers and viewers, because the agency is denying them the information, and make sure to interview elected officials.
Encourage other journalists and interested groups to request the information as well. If that doesn’t work, sue them.
