This document is a guide to accompany a training workshop “How to File a FOIA” to celebrate the University of Washington Center for Human Rights’ 10th Anniversary Celebration in May 2019. The guide includes information on researching, writing, submission, and tracking of FOIA requests, and was created by UWCHR graduate research fellow, Emily Willard in May 2019 based on previous drafts of training manuals for UWCHR interns. This training guide for anyone who is interested in filing a FOIA related to public interest.
The Freedom of Information Act (FOIA)[i] was enacted in 1966 by congress establishing the right of people and organizations to access government information. The U.S. federal government must provide the information, however, there are nine exemptions for why the government cannot provide this access. There are no citizenship restrictions. Anyone can ask.
“The principle underlying the FOIA is inherent in the democratic ideal as urged by Thomas Jefferson and other founders of our Republic – to ensure an informed citizenry, vital to the functioning of a democratic society.” (CIA Website)
How much the government is willing to share depends on the president, who usually issues executive orders at the beginning of their term. For example, in 2001 President G. W. Bush restricted access[ii] to the records of former presidents. On his first day of office, President Obama revoked the order and was restored to a 5- or 12-year limit (depending on the record). President Obama’s executive order also called for a “presumption of disclosure,” saying that the government should always assume people have maximum access, except in the case one of the 9 exemptions applies.
Alternatively, a president could promote a policy in which more limited amounts of information are released. For example, recently the Department of State[iii] was found to be over using the B(5) exemption (pre-decisional information) in order to withhold information that would prove to be embarrassing to the agency. However, there is no exemption to releasing embarrassing material.
Across the United States, grassroots movements to policy advocacy organizations, university law-clinics to legal advocates use the FOIA to obtain U.S. government information key to social justice, human rights, environmental justice, and civil rights efforts. There is a high level of public interest in this type of information, especially regarding evidence of crimes against humanity and human rights violations by state and military officials. Access to this information can shed important light in cases where the U.S. government played a key role in supporting dictatorships, training militaries,[iv] and conducting secret bombing campaigns[v] across the globe, as well as monitored and surveilled civil rights leaders here in the United States,[vi] among others. In the cases of forced disappearance,[vii] the withholding of information by the government continues the crime and prolongs the suffering of the families of the disappeared. Access to government information in these cases are paramount. Access to information is a human right.
Other countries[viii] also have public access to information laws, however the U.S. has one of the oldest and most well-functioning laws. Unlike the United States, many other laws[ix] around the world have a “human rights clause” which says that human rights information cannot be withheld under concerns for national security. This is a very powerful clause, but many of the new laws that include this clause have yet to be tested to their fullest extent.
While this guide only covers use of the FOIA, which applies to only U.S. federal government records, many states provide access to public records, sometimes known as “sunshine” laws or public records laws. It can often be a good strategy to combine a series of both local and federal requests about a topic to approach from multiple avenues.
One thing to remember is that while the FOIA states your rights clearly and you have an appeal process and the government panels and lawyers are supposed to carry out the letter of the law in service of you, ultimately, the agencies only give you what they want to. When they search and release information, they have a lot of the power, but if we keep asking, we keep knocking on their door, they can’t ignore it forever. So, we keep knocking, and keep asking.
[ii] Text of Executive Order 13233 (2001): https://www.govinfo.gov/content/pkg/FR-2001-11-05/pdf/01-27917.pdf
[iii] “The Next FOIA Fight: The B(5) ‘withhold it because you want to’ exemption,” https://unredacted.com/2014/03/27/the-next-foia-fight-the-b5-withold-it-because-you-want-to-exemption/
[iv] “La Quesera Massacre: Declassified documents open window into US awareness of wartime atrocities,” https://unfinishedsentences.org/reports/foia-la-quesera/
[vi] “ACLU and Center for Media Justice Sue FBI for Records on Surveillance of Black Activists,” https://www.aclu.org/news/aclu-and-center-media-justice-sue-fbi-records-surveillance-black-activists
[vii] The Endless Search for Justice in Guatemala,” https://www.amnesty.org/en/latest/news/2012/11/endless-search-justice-guatemala/
[ix] “Brazil takes steps on truth, human rights, and the right to know,” https://unredacted.com/2011/11/22/brazil-takes-steps-on-truth-human-rights-and-the-right-to-know/