The Ultimate Guide to Freedom of Information Act Requests for First Amendment Auditors

I. The Freedom of Information Act: Unlocking Government Transparency

A. What is the Freedom of Information Act (FOIA)?

Definition and Core Principle

The Freedom of Information Act (FOIA) is a federal law, codified at 5 U.S.C. § 552, that establishes a statutory right for any person to access records from federal executive branch agencies.¹ Enacted in 1966, the law is founded on the core democratic principle that an informed citizenry is indispensable for the functioning of a democratic society. Its purpose is to provide a check against corruption and to hold governmental authorities accountable to the governed.¹ FOIA fundamentally operationalizes the concept that the government and its vast repositories of information ultimately belong to the people, establishing a presumption of disclosure that agencies must overcome to justify withholding records.⁵

Historical Context: The Inherent Tension of Transparency

The Act was a landmark legislative achievement, replacing a vague and often-abused provision within the Administrative Procedure Act (APA) that government agencies had frequently used as a “withholding statute” rather than a tool for disclosure.⁷ The decade-long legislative effort for a stronger transparency law, spearheaded by advocates like Representative John Moss of California, was a direct response to the escalating government secrecy that characterized the Cold War era.⁴ This history reveals a foundational conflict that persists to this day: a legislative mandate for transparency clashing with an executive branch’s institutional preference for controlling information.

President Lyndon B. Johnson’s Reluctant Endorsement

This inherent tension is perfectly encapsulated by President Lyndon B. Johnson’s actions surrounding the law’s passage. In his official signing statement, issued on July 4, 1966, Johnson offered a ringing public endorsement, declaring, “A democracy works best when the people have all the information that the security of the Nation permits”.¹⁰ Yet, historical records paint a starkly different picture of his private sentiments. Johnson deeply opposed the bill, reportedly having to be “dragged kicking and screaming to the signing” and privately referring to it as “the damned thing”.⁸ He refused to hold a public signing ceremony, a common practice for major legislation, and his official statement was carefully worded to emphasize exceptions for national security and to assert the President’s constitutional power to maintain confidentiality.⁴ This initial conflict between the law’s promise and the executive’s reluctance established the strategic landscape for every public records battle that has followed. For an auditor, facing agency resistance is not merely dealing with a difficult clerk; it is confronting a deep-seated institutional culture of information control that dates back to the law’s inception.

B. The Power of FOIA for First Amendment Auditors

A “Superpower” for Accountability

For First Amendment auditors, public records laws are more than abstract legal principles; they are a tangible “superpower” for the people. These statutes provide the legal framework to demand information, gather evidence to support or debunk official claims, and challenge government narratives.¹ By requesting documents such as contracts, budgets, and policy manuals, auditors can illuminate how taxpayer money is spent, how decisions are made, and how laws are enforced, thereby exposing potential waste, fraud, corruption, or government overreach.

Case Study: The Critical Role of Public Records in Michigan

The impact of these laws is profoundly demonstrated in Michigan, where the state’s Freedom of Information Act has been a critical tool for investigating urgent public safety matters.

Psychiatric Patient Deaths: Public and media scrutiny, fueled by access to public records, has been instrumental in driving reform within Michigan’s state-run psychiatric hospitals. Following investigations into patient deaths at facilities like the Kalamazoo Psychiatric Hospital, which relied on records such as 911 call logs, the state legislature amended the law.¹³ Michigan Compiled Laws §§ 330.1720 and 330.1721 now mandate that psychiatric hospitals report all patient deaths and require the state to investigate any deaths by suicide or of unknown cause, with annual statistical reports submitted to lawmakers.¹⁴ This legislative change, born from transparency, has created a permanent accountability mechanism. Subsequently, the U.S. Department of Justice launched a statewide investigation into whether Michigan unnecessarily institutionalizes adults with serious mental illness, a probe that will depend heavily on access to these same state-held records.¹⁸
911 Systems and Police Misconduct: Records obtained under Michigan’s FOIA are the primary means by which the public can evaluate the performance of emergency response systems and hold law enforcement accountable. Key records such as 911 audio recordings, Computer-Aided Dispatch (CAD) reports, and dash-cam videos are all accessible through the state’s law.²⁰ Civil rights organizations and journalists have used the law to challenge the systemic withholding of police misconduct records, arguing that such transparency is essential for building public trust and ensuring that officers who violate the law are held accountable.²³

C. Federal FOIA vs. State Open Records Laws

Jurisdictional Distinction

A critical legal distinction that every auditor must master is the difference between the federal FOIA and state-level open records laws. The federal Freedom of Information Act applies exclusively to executive branch agencies of the federal government, such as the FBI, the Department of Defense, and the Environmental Protection Agency.³ It unequivocally does

not apply to records held by the President and his immediate staff, the U.S. Congress, or the federal courts.²⁸

The Patchwork of State Laws

The vast majority of an auditor’s work involves interactions with local entities like municipal police departments, county sheriff’s offices, city councils, and public schools. These entities are governed not by the federal FOIA, but by their respective state’s open records laws.³⁰ All 50 states and the District of Columbia have enacted such laws, though they operate under a variety of names, including “Sunshine Law” (Florida), “Public Records Act” (California), or “Freedom of Information Law (FOIL)” (New York).²⁶

Critical Differences

These state laws are not uniform; they vary dramatically in ways that directly impact an auditor’s strategy. Key differences include statutory response times, which branches of government are covered, and residency or identification requirements.²⁶ For example, Michigan’s FOIA applies only to its executive branch, whereas the laws in states like Connecticut and Illinois apply to all three branches.²⁶ Citing the correct statute in a request is not a mere formality; it is a legal necessity for the request to be valid. The casual, interchangeable use of the term “FOIA” for all public records requests is a common but significant strategic error. An effective auditor must become an expert in the specific transparency laws of the jurisdiction in which they are operating.

Table 1: Federal FOIA vs. State Open Records Laws – A Comparative Overview

Jurisdiction	Official Name of Law	Standard Response Time	Branches Covered	Notes on Residency/ID Requirements
Federal	Freedom of Information Act (FOIA)	20 business days	Executive Only	No residency requirement.
Michigan	Freedom of Information Act (FOIA)	15 business days	Executive Only	No residency requirement.
California	Public Records Act (CPRA)	10 days	All Three	No residency requirement.
Texas	Public Information Act (PIA)	10 days	All Three	No residency requirement.
New York	Freedom of Information Law (FOIL)	5 days	Executive, Legislative (Judicial exempt)	No residency requirement.
Massachusetts	Public Records Law	10 days	Executive (Judicial & Legislative exempt)	No residency requirement; a “no-ID” state.

II. What You Can (and Cannot) Request: Defining “Public Records”

A. What Qualifies as a Public Record?

Broad Legal Scope

The legal definition of a “public record” is intentionally broad to promote maximum transparency. Generally, it includes any writing or recording, regardless of its physical form, that is prepared, owned, used, or in the possession of a public body or its employees in the transaction of public business.³⁴ The presumption is that if a record pertains to the public’s business, it is a public record.

Types of Records

This expansive definition covers not only traditional paper documents like letters, reports, and maps but also, critically, all modern forms of data and communication. This includes emails, text messages, audio and video files, databases, and social media posts.³⁴

Practical Examples for Auditors

For First Amendment auditors, the most relevant records are almost always considered public records and are obtainable through a properly crafted request. These include:

Financial Records: Contracts with vendors, purchase orders, invoices, and budget reports.
Law Enforcement Records: Police incident reports, arrest records, use-of-force reports, body and dash camera footage, 911 call audio, and dispatch logs.²⁰
Operational Records: Agency policies, procedures, and training materials.

The Private Device Battleground

A pivotal issue in the modern transparency landscape is the use of private devices and accounts for public business. A growing legal consensus has established the “Content, Not Conduit” principle: the public status of a record is determined by its content and purpose, not by the ownership of the device or platform used to create or transmit it. Therefore, emails about city business sent from a mayor’s personal Gmail account or text messages between a police chief and a city council member on their personal cell phones are generally considered public records subject to disclosure.⁴⁰ This prevents officials from creating a transparency black hole simply by switching communication channels. Auditors must explicitly include language in their requests to cover these records, such as asking for communications “on both government-issued and privately-owned devices.”

“Meta” Records – Requesting the Request Process

The documents generated by an agency while processing a public records request—such as internal emails discussing the request, notes from staff, and logs detailing the search for records—are themselves public records.⁴⁴ This creates a powerful accountability tool. If an agency denies a request by claiming no records exist, an auditor can file a new request for the processing notes of the original request. This “meta-request” can reveal whether the agency conducted a diligent and thorough search, providing concrete evidence for an appeal if the search was inadequate.

B. What You Cannot Request

Answers to Questions

Public records laws grant the right to access existing records; they do not compel government employees to answer questions, conduct research, or create new analyses.²⁷ A request must be for a tangible, existing record, not for an explanation or summary of information. For example, one can request “all emails containing the police department’s overtime budget for 2024,” but cannot ask, “Why did the police department go over its overtime budget in 2024?”

Creation of New Records

An agency is not obligated to create a new record to satisfy a request. This means they do not have to compile data from various sources into a new spreadsheet or write a report summarizing their findings if such a document does not already exist in the normal course of business.³⁷

Records from Exempt Entities

As noted previously, the federal FOIA does not apply to the legislative or judicial branches of the federal government, nor to the White House itself.²⁸ State laws often have similar exemptions for their legislatures and court systems, though some legislative records related to spending or personnel may be accessible.³³

Records Properly Destroyed

Government agencies are required to follow official record retention schedules, which dictate how long different types of records must be kept. If a record has been legally destroyed in accordance with an approved retention schedule before a request is filed, it is permanently irretrievable.⁵⁰ However, it is a serious violation of the law for an agency to destroy records

after a request for them has been submitted.

Overly Broad or “Unduly Burdensome” Requests

Agencies can legally reject requests that do not “reasonably describe” the records sought. A request is considered sufficiently descriptive if a professional employee familiar with the subject matter can locate the records with a reasonable amount of effort.⁵¹ Vague or sweeping requests for “any and all records related to…” are often denied as “unduly burdensome” or an improper “fishing expedition”.⁵²

III. Strategic Pre-Filing Research: Increasing Your Success Rate

A. Leveraging Existing Public Resources

Start with the Obvious

Before drafting a formal request, conduct basic due diligence. A simple search on Google or another search engine may reveal that the information is already available in news articles, academic reports, or other public forums.⁵⁴

Agency Websites and FOIA Reading Rooms

Federal agencies are legally required to maintain online “Electronic Reading Rooms” under the Electronic Freedom of Information Act (E-FOIA) Amendments of 1996.⁵⁶ These digital libraries contain final opinions, policy statements, administrative staff manuals, and, most importantly, records that have been frequently requested by the public.⁵⁸ Always search these repositories, as well as the agency’s general website, before filing. This can save significant time and effort.⁶³

FOIA Logs: Your Intelligence Source

Many agencies publish logs of incoming FOIA requests, which serve as an invaluable source of strategic intelligence.⁶⁶ Analyzing these logs allows a requester to:

Identify Previously Released Records: If another person has already requested the same documents, you can simply request them again, often by citing the previous request number, which can dramatically expedite the process.
Analyze Agency Behavior: Logs provide data on an agency’s typical response times, the fees they charge, and the exemptions they most commonly cite, helping you anticipate their actions.⁶⁸
“Tailgate” Other Investigations: By seeing what other journalists and researchers are requesting, you can “FOIA the FOIAs” to obtain the same material or build upon their work.⁴⁴

Third-Party Resources (MuckRock)

Platforms like MuckRock archive tens of thousands of public records requests and the full chain of correspondence between requesters and agencies. This creates a searchable behavioral database that reveals how specific agencies handle requests, their patterns of delay or denial, and their fee structures.⁷⁶ Researching an agency on MuckRock before filing allows for a proactive strategy tailored to that agency’s known behavior.

Open-Government Guides

For requests to state and local agencies, resources like the Reporters Committee for Freedom of the Press’s Open Government Guide are indispensable. They provide detailed, state-by-state summaries of public records and open meetings laws, which is essential for citing the correct statutes and understanding local procedures.⁸¹

Record Retention Schedules

Federal and state archives publish official record retention schedules that mandate how long agencies must legally preserve different categories of records.⁸³ An expert auditor cross-references these schedules with an agency’s FOIA log. If a log shows an agency claimed “no records exist” for a document that its retention schedule requires it to keep, this discrepancy provides powerful evidence to challenge the adequacy of the agency’s search in an appeal or litigation.

B. Identifying the Correct Agency

Precision is Non-Negotiable

Public records requests must be directed to the specific government agency that created or maintains the records. There is no central office or clearinghouse that accepts and routes requests.² A request sent to the wrong agency, or one that is too general (e.g., addressed to the “U.S. Government”), will be rejected.

Strategy for Multiple Holders

In cases where records might be held by multiple entities—such as a joint federal-local task force—separate, legally distinct requests must be submitted to each agency. A federal FOIA request should go to the federal agency, and a state public records act request should go to the local agency. When possible, consider submitting requests to smaller, less-inundated agencies first, as they may have fewer backlogs and be more cooperative.

Locating the FOIA Officer/Custodian

Most government agencies have a dedicated FOIA or public records page on their website. This page will typically list the name, title, and contact information for the designated FOIA Officer or Public Records Custodian. All requests should be addressed directly to this individual or office to ensure proper routing and timely processing.⁶⁵

C. Refining Your Request

Speak Their Language

The most effective requests use the agency’s own internal vocabulary. By reviewing an agency’s website, organizational charts, and published reports, you can learn the specific terminology, document titles, and acronyms they use. Incorporating this language into your request makes it easier for the records custodian to understand what you are seeking and to conduct an effective search.⁹⁴

Point to Specifics

If your research uncovers a reference to a specific record in a news report, meeting minutes, or another government document, cite that source directly in your request. For example: “A copy of the ‘Internal Review of Body Camera Procedures’ mentioned by Chief Smith at the City Council meeting on May 15, 2025.” This gives the agency a clear and unambiguous target for their search.

The Strategic “Fishing Expedition”

While vague “fishing expeditions” are rightfully denied, a well-structured request can effectively probe for information when the exact records are unknown. This strategy avoids overly broad terms like “any and all records.” Instead, it provides a specific but comprehensive “laundry list” of potential record types. For example, in an investigation into a government contract, one might request “all contracts, amendments, statements of work, invoices, purchase orders, and email communications between Agency X and Vendor Y from January 1, 2024, to the present.” This casts a wide but clearly defined net, making it difficult for the agency to claim the request is unduly burdensome.⁵²

IV. Crafting an Effective FOIA Request: A Step-by-Step Guide

A public records request is not merely a letter; it is a legal instrument that forms the foundation for any subsequent appeal or litigation. Every element must be crafted with precision, assuming it may one day become an exhibit in a court filing. Using a standardized, legally vetted template is a best practice that demonstrates seriousness and a readiness to enforce one’s rights, which can itself encourage agency compliance.

A. Essential Elements of the Request Letter

1. Cite the Proper Law

This is the most critical component. Begin the letter by explicitly stating the legal authority for your request. For federal agencies, state that the request is made “pursuant to the Freedom of Information Act, 5 U.S.C. § 552.” For state or local agencies, cite the specific state statute, such as “pursuant to the Michigan Freedom of Information Act, MCL 15.231 et seq.” Citing the wrong law is a common mistake that can lead to immediate rejection or significant delays.²⁸

2. Agency and Contact Information

Address the request to the specific agency and, whenever possible, to the designated FOIA Officer or Public Records Custodian identified during your pre-filing research.⁹⁰ This ensures the request is routed correctly from the outset.

3. Your Identification

Provide your full name and current contact information, including a mailing address and email address.

Federal FOIA: While anonymous requests are sometimes possible, providing contact information is standard practice and necessary for communication.
State Laws: Some states may have residency requirements. However, others, such as Massachusetts, are “no-ID” states where an agency cannot legally require identification to process a request. In such states, using a pseudonym like “John Q Public” is generally permissible, though impersonating a real, specific individual is illegal.

4. Requester Status (Federal FOIA)

For federal requests, you must declare your requester category, as this determines the fee structure. The primary categories are: “commercial use,” “educational or noncommercial scientific institution,” “representative of the news media,” and “all other”.⁹⁹ First Amendment auditors who operate a website, blog, or YouTube channel to disseminate information to the public can often successfully argue that they qualify as a “representative of the news media,” which significantly reduces potential fees.¹⁰¹

5. Description of Records

This is the operational core of your request.

Be Specific: The legal standard is to “reasonably describe” the records so that a government employee familiar with the subject can locate them with a reasonable amount of effort.²⁷ Avoid ambiguous or overly broad language.
Use Boilerplate: To prevent an agency from interpreting your request too narrowly, include catch-all phrases. For example, after listing specific document types, add “and all other related agreements, correspondence, or similar materials.”
Set Date Parameters: Always define a clear and reasonable timeframe for your search, such as “all responsive records created between January 1, 2024, and the date this request is processed”.²⁸ This prevents the agency from deeming the request overly broad.
Incorporate Research Clues: Weave in specific details from your research—names, dates, event locations, contract numbers—to help guide the agency’s search and demonstrate that your request is well-founded.¹⁰³
Example Language: “Pursuant to the Freedom of Information Act, 5 U.S.C. § 552, I hereby request a copy of your contract, all associated purchase orders, and all other agreements or similar materials related to your agency’s relationship with [Vendor Name]. Please provide all responsive materials in electronic format for the period from through the date this request is processed.”

6. Desired Format

Specifying the format for records is a crucial strategic move to counter common agency obstruction tactics. Always request records in their original, native electronic format (e.g., .xls for spreadsheets, .pst for emails, .mp4 for video). This preserves searchable text and valuable metadata. If you do not specify the format, an agency may engage in the “PDF print-out” gambit: printing electronic records, redacting them with a black marker, and scanning them back into a single, non-searchable image file. This technically provides the record but renders the information within it practically useless for analysis. The E-FOIA amendments and many state laws require agencies to provide records in the requested format if they are “readily reproducible” in that form.¹⁰⁵

7. Fee Willingness & Waivers

State Willingness to Pay: To prevent your request from stalling over minor costs, include a sentence stating your willingness to pay up to a certain amount, typically $25. For example: “I am willing to pay fees for this request up to a maximum of $25.00. If you estimate that the fees will exceed this limit, please contact me before proceeding”.⁹⁶
Request a Fee Waiver: If you believe you are eligible, you must formally request a fee waiver. The legal standard for a public interest fee waiver is that disclosure of the information “is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester”.² In your request, you must articulate how the records will shed light on government activities and explain your plan to disseminate the information to the public (e.g., through a report on your website or a video on your YouTube channel).
Fees and Missed Deadlines: Note that under federal FOIA and many state laws, if an agency fails to meet its statutory response deadline, it may be prohibited from charging search fees.¹⁰⁹

8. Reason for Request (Optional but Strategic)

While the reason for a request is not legally required (except for fee waiver justifications), providing a concise and legitimate purpose can sometimes be strategic. A simple statement like “This information is being requested to better inform the public about police use-of-force policies” can frame the request in a positive light and may encourage a more cooperative response from the records custodian.

B. Submission Methods

Preferred Channels

Most agencies now accept public records requests through multiple channels, including email, dedicated online portals, fax, and traditional mail.²

Online Portals

Using an agency’s dedicated online portal is often the most efficient submission method. Portals like the federal FOIA.gov or agency-specific systems typically provide instant confirmation of receipt and a tracking number, and they create a clear, documented record of all correspondence.¹¹⁰ The existence of a well-maintained portal is often a sign of a more organized and compliant FOIA office.

The FBI’s Shift Away from Email

In a move widely criticized by transparency advocates as creating an unnecessary barrier to access, the Federal Bureau of Investigation (FBI) eliminated email as a method for submitting FOIA requests. Requesters must now use the FBI’s eFOIPA portal, fax, or standard mail.²⁹

Verification

If an agency’s preferred submission method is unclear from its website, a brief phone call to its records or FOIA department is a simple way to confirm the correct email address, fax number, or mailing address, preventing the request from being lost or delayed.⁹¹

V. Understanding Agency Responses and Exemptions: Navigating the Legal Landscape

A. The Presumption of Disclosure

The central tenet of all public records law is the presumption of openness. Government records are considered public by default, and the legal burden rests entirely on the agency to provide a specific, legally valid reason for withholding any record or portion thereof.⁵

The “Foreseeable Harm” Standard

The FOIA Improvement Act of 2016 codified a critical standard for federal agencies: the “foreseeable harm” test. This requires that an agency not only identify a relevant exemption but also articulate the specific, foreseeable harm to the interest protected by that exemption that would result from disclosure.¹¹⁶ An agency can no longer withhold information simply because it technically falls within an exempt category; it must demonstrate a tangible risk of harm.

B. Response Timeframes

Federal Agencies

Under federal FOIA, agencies have 20 business days from the receipt of a request to issue a determination.¹⁰⁹ This determination can be a grant of the records, a full or partial denial, or a notice that they are taking a 10-business-day extension due to “unusual circumstances” (e.g., a voluminous request).¹⁰⁹

State Agencies

Response times at the state level vary dramatically, making knowledge of local law essential. Michigan’s FOIA allows agencies 15 business days to respond, while California and Texas mandate a response within 10 days, and New York within 5 days.²⁶ Some states lack a fixed deadline, requiring only that agencies respond within a “reasonable amount of time,” a vague standard that can be legally challenged if an agency’s delay becomes excessive.

The Reality of Delays

It is common for agencies, particularly large federal ones with significant backlogs, to miss these statutory deadlines. A missed deadline constitutes a “constructive denial” and gives the requester the legal right to file an administrative appeal or a lawsuit. Furthermore, a failure to respond in time may prevent the agency from charging certain fees.¹⁰⁹

C. The Nine Federal FOIA Exemptions (B-1 through B-9)

While the presumption is disclosure, FOIA contains nine specific exemptions that permit agencies to withhold certain categories of information. State laws have similar, though not identical, exemptions.²

(b)(1) National Security: Protects information properly classified as secret in the interest of national defense or foreign policy.
(b)(2) Internal Personnel Rules and Practices: Covers trivial internal agency matters, such as employee parking rules or vacation policies.
(b)(3) Information Exempted by Other Statutes: A “catch-all” that incorporates confidentiality provisions from other federal laws. Examples include grand jury information and tax return data.
(b)(4) Trade Secrets and Confidential Commercial or Financial Information: Protects proprietary business information submitted to the government.
(b)(5) Inter-agency or Intra-agency Memoranda or Letters: This is the highly contentious “deliberative process” privilege. It is designed to protect pre-decisional, deliberative communications (e.g., drafts, recommendations, opinions) to encourage frank and open discussion among government officials during the policy-making process. It also covers the attorney-client and attorney work-product privileges. This exemption is the most frequently cited and often the most abused, sometimes referred to as the “withhold it because you want to” exemption. The 2016 FOIA amendments placed a 25-year time limit on its use.²
(b)(6) Personal Privacy: Protects personnel, medical, and similar files where disclosure would constitute a “clearly unwarranted invasion of personal privacy.” This requires balancing the individual’s privacy interest against the public’s interest in disclosure.
(b)(7) Law Enforcement Records: A broad and complex exemption with six subparts. It protects records compiled for law enforcement purposes, but only if their release could reasonably be expected to: (A) interfere with enforcement proceedings; (B) deprive a person of a right to a fair trial; (C) constitute an unwarranted invasion of personal privacy; (D) disclose the identity of a confidential source; (E) reveal law enforcement techniques and procedures; or (F) endanger the life or physical safety of any individual.
(b)(8) Records of Financial Institutions: Protects records related to the examination and regulation of financial institutions.
(b)(9) Geological and Geophysical Information: Protects sensitive data concerning wells, such as maps and geological information.

D. Common Reasons for Denial or Delay

Auditors should be prepared to encounter a range of justifications for withholding records. Some are legitimate, while others are questionable or outright illegal.

Legitimate Reasons: A request may be properly denied if it is unduly burdensome, seeks records related to an active criminal investigation (Exemption 7A), implicates national security (B-1), violates personal privacy (B-6/7C), or requests records that were properly destroyed according to a retention schedule.
Illegitimate or Questionable Reasons:

The “Embarrassment Exemption”: Agencies have no legal right to withhold records simply because their disclosure would be embarrassing, reveal mistakes, or expose officials to criticism. This is a political concern, not a legal exemption.¹
Poor Records Management: An agency may claim it cannot locate records due to disorganized files or personnel turnover. While this may be true, it represents a failure of the agency’s statutory duty to maintain public records and can be challenged as an inadequate search.
Requester Identity Challenges: In “no-ID” states like Massachusetts, it is illegal for officials to demand identification as a condition for accepting or processing a public records request. This tactic is often used to intimidate or obstruct requesters and should be challenged.

E. Understanding Redactions

Justification Required

When an agency redacts (blacks out) portions of a document, it is not sufficient to simply hide the information. The agency must cite the specific statutory exemption that justifies each individual redaction, typically in the margin next to the redacted text.

Segregable Information

An agency cannot withhold an entire document just because a small portion is exempt. The law requires them to release any “reasonably segregable” non-exempt information.² This means they must review the document line-by-line and redact only those specific words, sentences, or paragraphs that are legally protected.

Blurring of Body Cam Footage

A frequent issue for auditors is the blurring of faces or other elements in body camera footage. Agencies may claim this is necessary to protect the privacy of bystanders or because it relates to an ongoing investigation. While sometimes legitimate, excessive or unjustified blurring can be challenged. If blurring alters the substantive content of the video in a misleading way, it could be argued that this constitutes a form of evidence tampering.

VI. Post-Submission Strategies and Advocacy: Ensuring Compliance

Receiving an initial response from an agency is not the end of the process; it is often just the beginning of a negotiation. A denial or heavy redaction should not be seen as a failure, but as the agency’s opening position. An effective auditor must be prepared to engage in strategic advocacy to enforce their rights under the law.

A. Initial Communication and Follow-Up

Assume Good Faith (Initially)

While the relationship can be adversarial, it is strategically wise to begin all communications with the records officer with professionalism and courtesy. FOIA officers are often overworked and dealing with a high volume of requests. Building a professional rapport can lead to more productive conversations, helpful clarifications, and sometimes, faster results. A polite phone call is often more efficient for a quick status update than a formal email.¹²⁸

Ask for Completion Dates

If an agency extends its response time or indicates a delay, you have the right to request an estimated date of completion. Once that date is provided, mark it on your calendar and follow up promptly if the deadline is missed.¹³⁰

B. “Interviewing” the Response

Scrutinize

Never accept an agency’s response at face value. “Interview” the documents and the denial letter.

Did they address every part of your request?
Are the cited exemptions legally valid for the information withheld?
Are the redactions properly justified?
Does their claim of “no responsive records” seem plausible given the agency’s function?

Don’t Take at Face Value

Maintain a healthy skepticism. If the agency’s response contradicts known facts or previously released information, it is a strong indication that the response is incomplete or disingenuous.

C. Addressing Denials, Delays, and Excessive Fees

1. Revise and Resubmit

If your request was denied for being too broad or vague, the simplest and fastest course of action is often to narrow the scope based on the agency’s feedback and resubmit it as a new request.

2. Administrative Appeal

Federal FOIA: Filing a formal administrative appeal is a mandatory step before you can sue a federal agency in court. Appeals must typically be filed within 90 days of the denial.¹³¹ The appeal is reviewed by a different, often more senior, official within the agency and frequently results in the release of additional records.²⁸
State Laws: The availability and procedures for administrative appeals vary significantly by state. Some, like New York, have a formal process, while others, like California and Texas, do not, requiring a lawsuit as the next step.

3. Office of Government Information Services (OGIS)

Role: OGIS is the federal FOIA ombudsman, housed at the National Archives and Records Administration. It offers free mediation services to help resolve disputes between requesters and federal agencies.¹³⁴
Value: While OGIS’s recommendations are non-binding, they can be highly persuasive. Engaging OGIS before filing a lawsuit is a valuable, no-cost step. The process can function as a form of pre-litigation discovery, as the agency’s responses to OGIS can reveal the strengths and weaknesses of its legal position, providing valuable intelligence for a potential lawsuit.

4. Litigation

Last Resort: When all other avenues are exhausted, filing a lawsuit is the ultimate enforcement mechanism of FOIA.¹³⁷
Attorney’s Fees: A powerful provision in federal FOIA and many state laws allows a court to award reasonable attorney’s fees and litigation costs to a requester who “substantially prevails” against the government.¹³⁹ This provision incentivizes attorneys and public interest law firms to take on strong FOIA cases on a pro-bono or contingency basis.
Building a Case: To succeed in court, you must have a meticulously documented record of all your attempts to cooperate with the agency, including phone logs, emails, revised requests, and administrative appeals. This demonstrates to the court that you made a good-faith effort to resolve the dispute before seeking judicial intervention.
Sue at Any Time: A requester can file a lawsuit as soon as the statutory time limit for a response has passed, even if an appeal is still pending with the agency.

5. Strategies for Burdensome Requests

If an agency claims your request is “unduly burdensome,” do not simply accept the denial. Instead, engage them with solutions:

Request Samples: Offer to accept a smaller, representative sample of the records, such as the “first ten pages of the report” or the “last five complaints filed.”
Consult IT: For requests involving large databases, ask to speak directly with the agency’s IT department. They can often explain how data is structured and help you craft a more precise query that is easier for them to run.
User Manuals: A clever tactic is to file a request for the user manual of the agency’s record-keeping software or database. The manual will reveal the system’s architecture and terminology, allowing you to craft a subsequent, highly specific request for a data export that the agency cannot easily deny.

6. Countering Illegal Record Destruction

If you have credible evidence that an agency destroyed records after your request was filed, this is a serious legal violation. This action may warrant immediate legal action. For federal records, you should also report the incident to the National Archives and Records Administration (NARA), which is responsible for investigating the unauthorized disposition of federal records.⁵⁰

7. Addressing Police Pushback (No-ID States)

In a state with a “no-ID” public records law like Massachusetts, if police improperly demand identification to submit a request, the best course of action is to be polite but firm. State the law clearly. If they continue to obstruct, do not escalate the confrontation on-site. Instead, document the interaction (ideally on video) and report the violation to the state’s public records oversight body, such as the Secretary of the Commonwealth’s office or the state Attorney General. State-level intervention can force the local department to comply and can result in a permanent negative mark on the municipality’s record.

D. Proactive and “Wide Net” Strategies

Request Your Own FOIA Processing Records

To verify an agency’s diligence in fulfilling your request, file a follow-up request for their internal processing notes, search logs, and communications related to your original request number.

Keyword Searches

When requesting emails, provide a list of specific keywords for the agency to search. This focuses the search and makes it harder for the agency to claim the request is too broad.

Cast a “Wide Net”

When investigating an incident or issue in a particular geographic area, submit coordinated requests to all relevant public bodies. For a local police matter, this could include the municipal police department, the county sheriff’s office, the town hall (for any related meeting minutes or contracts), the local library, and even the water or public works departments if their vehicles or personnel were in the area. Online maps and AI tools like ChatGPT can be useful for quickly generating a list of surrounding towns and counties to expand the search.

Outsourcing

For large-scale investigations requiring requests to dozens or hundreds of agencies, consider using freelance platforms like Upwork or Fiverr to hire someone to compile lists of agency contact information and FOIA officer details.

Serial Requests

View public records access as an iterative process. Be prepared to file a series of requests, where the documents obtained from the first request provide the leads, names, and keywords needed to craft a more targeted and effective second request, and so on.

VII. Specific Request Types and Considerations for Auditors

A. Body Worn and Dash Camera Footage

Requesting video of a police encounter requires a comprehensive strategy to obtain a full and accurate picture of the event. A single video clip often provides a narrow and potentially misleading perspective. A complete understanding requires requesting the entire “ecosystem” of records surrounding the incident.

Comprehensive Request: Do not just ask for video from the primary officer involved. The request should explicitly ask for body-worn camera footage from all officers who responded to the scene and dash camera footage from all vehicles present.
Required Information: To avoid a denial for being too vague, a request for video must include the date, the approximate time, the specific location or address of the incident, and the names of one or more known subjects of the recording.²⁰
Potential Denials: Be aware that requests for footage may be denied if the incident is part of an ongoing investigation, if it was recorded in a private space where there is a reasonable expectation of privacy, or, in some jurisdictions, if it involves a minor misdemeanor punishable only by a fine.
Known Issues: Body cameras are not infallible. They can be obstructed by an officer’s tactical vest or a seatbelt, resulting in an audio-only recording. The request should ask for both video and audio.
Requesting 911/Dispatch Audio: To capture crucial context about what officers knew before arriving, always request the 911 call audio and all radio dispatch traffic associated with the incident. A best practice is to request the audio from 3-5 minutes before the initial call to 3-5 minutes after the incident is declared concluded by officers on scene.
Officer Reports: The video tells what happened; the written report tells what the officer said happened. Comparing the two is often where discrepancies are found. Always request all written reports, including field interview notebooks, associated with the incident.
Personal Devices: The request should explicitly include language asking for “any and all video, audio, pictures, or notes taken on any officer’s personal device (e.g., cell phone) during or immediately following the incident.”

B. Officer Conduct Records

Disciplinary Records: Request records of sustained internal affairs investigations and disciplinary actions taken against officers. While many states shield these records, others make them public.¹⁴⁰ In some jurisdictions, prosecutors maintain “Giglio” or “Brady” lists of officers with known credibility issues; these lists are public records.²⁵
Use of Force Reports: Departments are required to document every instance in which an officer uses force. These reports are critical for identifying officers with a pattern of excessive force.
Citizen Complaints: Request logs or summaries of complaints filed by the public against officers. While personal information of the complainant will likely be redacted, the data can reveal patterns of alleged misconduct.
Lawsuits: Request information on civil lawsuits filed against the department or specific officers for misconduct, such as civil rights violations.

C. Specialized Records

Passport Records: Passport application records are maintained by the U.S. Department of State. For older records (generally pre-1925), they are held by the National Archives and Records Administration (NARA). These can often be requested directly from the relevant agency’s website without a formal FOIA request.¹⁴²
VA Claim Files (C-File): A veteran’s C-File contains all documents, evidence, and decisions related to their disability claims with the Department of Veterans Affairs. This is a crucial record for veterans and their advocates. It is not obtained via a standard FOIA letter but by submitting VA Form 20-10206. The process is notoriously slow, often taking 4-6 months, and the file is typically delivered on a CD.¹⁴⁵

VIII. Advanced Tips and Ethical Considerations

A. Transparency vs. Secrecy: An Ongoing Tension

The entire public records process is a manifestation of the fundamental tension between the public’s right to know and the government’s perceived need for secrecy. While legitimate concerns over national security, personal privacy, and law enforcement effectiveness exist, auditors must remain vigilant against the improper use of these exemptions to hide incompetence, wrongdoing, or simple political embarrassment.⁹ The so-called “embarrassment exemption” is not, and has never been, a valid legal basis for withholding public records.¹

B. Building Relationships with Records Officers

While the nature of auditing can be adversarial, it is a strategic error to treat every government employee as an adversary. FOIA officers and records custodians are professionals tasked with navigating a complex law, often with limited resources and facing a barrage of requests.

Courtesy and Professionalism: A courteous, professional, and persistent approach is far more effective than a hostile or petty one. A positive working relationship can lead to helpful clarifications that can save weeks of delay.¹²⁸ The most effective auditors are unyielding in their legal demands but professional in their human interactions.
Persistent, Not Petty: It is crucial to be persistent in following up on deadlines and challenging denials. However, this should be distinguished from being deliberately difficult or “playing games” with agency staff, which can poison a relationship and lead to minimal compliance.

C. Documentation and Organization

Maintain a Log: For any serious auditor, maintaining a detailed spreadsheet or log of all public records requests is essential. The log should track the agency, the date submitted, the subject of the request, the agency’s assigned tracking number, all relevant deadlines, a summary of all communications, and the final disposition. This organizational tool is critical for managing multiple requests and becomes invaluable evidence if litigation is necessary.
Templates: Develop and continually refine a set of request templates for different types of records (e.g., a police incident “package,” a government contract, personnel files). This streamlines the process, ensures consistency, and prevents accidental omission of key legal language.

D. The Long Game and Adaptability

Don’t Give Up: The public records process is frequently slow, frustrating, and filled with obstacles. Persistence is the single most important attribute of a successful requester. Many agencies count on requesters giving up in the face of delays and denials.
Expect Redactions and Appeals: Do not be discouraged by an initial denial or a heavily redacted response. As discussed, these are often just the first step in the process. View the administrative appeal not as a sign of failure, but as a standard and expected part of the workflow.
Continuously Learn: Public records laws are constantly evolving through new legislation and court decisions. Agency procedures and personnel also change. Stay informed by following the work of organizations like the Reporters Committee for Freedom of the Press, MuckRock, and the Office of Government Information Services.

E. Ethical Use of Information

The ability to compel the government to turn over its records is a significant power. With that power comes a profound ethical responsibility.

Responsible Disclosure: When records are obtained, particularly if they contain sensitive information about private individuals that an agency failed to redact, auditors have an ethical obligation to use that information responsibly. The goal of a First Amendment audit is to promote government accountability, not to inflict needless harm on private citizens whose information happens to be contained within a public record. Use discretion and protect personal privacy where it does not conflict with the core purpose of holding the government to account.
Analogy: If FOIA is a “superpower,” it must be wielded with the wisdom and restraint that such power demands.

IX. Conclusion: The Enduring Value of FOIA for Accountability

The Freedom of Information Act and its state-level counterparts represent one of the most vital legal instruments in a functioning democracy. These laws empower citizens, journalists, and First Amendment auditors to move beyond the role of passive observers and become active participants in the oversight of their government. They provide the mechanism to transform the principle of transparency from an abstract ideal into a tangible, enforceable right.

The process is undeniably challenging. It is often slow, fraught with bureaucratic hurdles, and can feel, at times, dysfunctional. Yet, despite these frustrations, the public records process works. It brings to light information that would otherwise remain hidden, it provides the raw data for accountability, and it serves as a constant reminder to those in power that their actions are subject to public scrutiny. For the First Amendment auditor, mastering these laws is not just a useful skill; it is the primary means of fulfilling their mission. Every successful request, every document obtained, every piece of information brought into the light is a small but significant victory for open government.

Knowledge is power, protect yourself.

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