5 Researching before you file

Conduct research

What documents and information on the topic/incident can you find? You want to see what already exists, where you need more information, and if there are other groups or projects doing similar work. Keep in mind that you are building a case for why the agency should have the information, and then why they should release it to us. Download and save copies of the documents you find! Sometimes documents move or disappear from websites, especially government ones!

Agency Electronic Reading Rooms

These are a great place to start. Many agencies preemptively release commonly requested information, and/or post information released under other people’s FOIA requests. Each agency generally has an “electronic reading room” or a “FOIA reading room” that you can find by googling. Some agencies have vastly more helpful reading rooms than others.

Research Databases

There are currently two online research databases but require a membership/subscription: The Digital National Security Archive, published by ProQuest, and U.S. Declassified Documents Online, published by Gale. The University of Washington has subscriptions to both of these.

  1. The Digital National Security Archive is a series of collections of declassified U.S. government documents obtained by the National Security Archive, a non-governmental research institute located in the George Washington University Gelman Library in Washington, D.C. The majority of these documents were obtained through FOIA requests, and archival research at the National Archives and presidential libraries. Each document is hand selected and indexed for inclusion in the document collections. These documents are mainly about U.S. foreign policy and Cold War history. The documents are not full-text searchable.
  2. The U.S. Declassified Documents Online documents mostly seem to be copies from presidential libraries and other executive agencies. The description of the database says that collection editors closely monitor releases by the agencies and libraries for inclusion of the records in the database. They appear to be full-text searchable. They do not seem to be the result of FOIA requests. They also mostly seem to be about U.S. foreign policy.

National Archives and Records Administration (NARA)

If you happen to live near or have access to a NARA location, you can go into their public, physical reading room (in College Park, Maryland) and get help from both civilian and military archivists. You can also search the website to try to find online descriptions or possibly even scanned copies of the documents. However, NARA only has information (generally) that is 25 years or older. After 25 years, agencies are supposed to transfer their records to NARA, however this is a very blurry line. If the information you are looking for falls between 20 and 35 years, it is still worth asking the agency, though they may refer you to NARA. If both NARA and the agency says they don’t have it, the records might be in “document purgatory.”

Depending on your research interests searching the NARA website and finding aids might be helpful, but in most cases, it is very cumbersome, and most things are not available digitally. Unless you have well-known, easily accessible topics like WW2, the Vietnam War, or the JFK Assassination, for example, I don’t recommend spending a lot of time pursuing this option. If your topic/issue is newer than 25-30 years, NARA won’t have the information anyway!

Presidential libraries are part of NARA and are also subject to the FOIA. You can visit the locations, access documents, request finding aids, and submit FOIA requests. These can be excellent sources for White House information, for example from the National Security Council, or Presidential Daily Briefs.[i] It is important to note that presidential records can be exempt from disclosure for 12 years after a president leaves office, according to the Presidential Records Act.

Building on other FOIA projects

It is good practice to search around and see if there are other groups doing similar research. For example, in the case of requests to Department of Homeland Security regarding immigration enforcement, may organizations and university law clinics have submitted requests, and even filed litigation for the release of information. Lots of times organizations will actually publish copies of their FOIA correspondence with agencies, and original request language. You can file similar or identical requests. You can also potentially get in touch with the group or organization and get their advice, and potentially even collaborate on your work.

If you use the same wording but tweak the geographical area, or date range, you have lots of good resources for how to fight for the release of the information in appeal arguments later on. This is true particularly if similar information was already released, or won through litigation. For example in the case where you are conducting research about ICE practices in Texas, and someone else won information through litigation about information in Massachusetts, you can file the exact same request language. Then, if you are denied for any reason, you can cite the Massachusetts case and argued that you used the identical language. This builds one of the strongest appeal cases possible.

News & Media

You can scour news articles and other media for information that government officials have said publicly that could shed light on your issue and point to which agency might have the information. Also, in your request (and any future appeals) you can make the argument that the information, or similar information, is already public. It can also help you prove that the information exists at all. Additionally, more and more news agencies are explicitly saying that they got information through the FOIA. You can file similar requests that they did or use it as leverage saying that information has already been released.

Document Purgatory

If both NARA and the agency say that they don’t have documents, request from the agency an SF-135 which is the form the agency has to fill out to send the documents to NARA. This should prove whether or not the documents were sent to NARA, and where they are. It is possible also that the documents are languishing in “document purgatory” also known as a federal records center, or in an “off-site storage facility.” The documents live here while they are in the process of being handed over to NARA for accessioning. At this point, they are still in the official custody of the agency, though in a NARA facility.

SF-135 forms can also be a gold mine for new FOIA requests. You know the documents exist, and where they are located, and they are usually described down to the folder-level of detail. It might be a good strategy to request a sample of them (i.e. one box), see if they are relevant, and then request additional boxes later if needed.

 

[i] “Presidential Daily Briefs from Kennedy and Johnson Finally Released,” September 16, 2915, National Security Archive, Washington, D.C., https://nsarchive2.gwu.edu/NSAEBB/NSAEBB530-Presidents-Daily-Briefs-from-Kennedy-and-Johnson-Finally-Released/

 

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How to FOIA by Emily Willard is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License, except where otherwise noted.

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