Ep. 2 Faced with FOIA Delays, Don't Get Mad. Get Meta

FOIA Tactics to Cut Wait Times, Increase Knowledge, and Peak Under the Hood

Seemingly interminable delays can be the bane of a FOIA requestor’s existence. Three simple FOIA tools can help shorten waits and sharpen requests.

Effective requestors think hard before sending requests:

• What do we really want to learn from the records we’re requesting?

• What’s already out there?

• How can we use existing information to target the information we want?

• How might records custodians respond?

Great requestors approach the process iteratively: Responses to one request inform the next, no matter what the response looks like.

Sometimes, however, delays in the custodian’s office make even the most effective requestors’ job seem impossible. Here are three tools I’ve learned from great requestors that can help push back on delays.

1. Start with Metadata

Rather than seeking documents, seek data. Specifically, seek the metadata that contains the documents you think you might eventually want. Getting responses will help narrow down the next request(s) to specific records most likely to advance the ball.

For instance, instead of seeking “all emails between [custodian official 1] and [subject of interest 2] sent or received between [start date] and [end date] containing [the word(s) or phrase(s) of interest],” try seeking the metadata for [custodian official 1] during the same period.

Why? Because the records reviewer won’t have to go through and redact all the emails, and you won’t have to review them all to sift through the good stuff verses the noise. Instead, the records officer can simply run a search of existing metadata and print it. They might even say they’re ‘pleased to provide’ it. With the responsive metadata, savvy requestors can then pick and choose which of the emails might be most interesting, and then specifically request those particular emails.

Some custodians might claim that requesting a search for metadata is the same as asking them to create a new record. That’s wrong. Metadata exists (, man).

As Judge Shira Scheindlin explains in National Day Laborers Organizing Network v. US Immigration and Customs Enforcement (SDNY), metadata is itself an agency record, and custodians can no more strip and withhold it than they can claim demanding it is demanding creation of something that doesn’t already exist.

Get the list of documents with the search terms you want, then figure out which ones look worthy of further exploration.

2. FOIA the FOIA

“Meta FOIA” requests seek records custodians create in respond to FOIAs. They’re a way of understanding what your previous request prompted the custodian to do.

When we learned Border Patrol Agents took credit for killing the Robb Elementary School shooter in Uvalde, Texas, we filed a FOIA request with CBP’s Public Affairs office for records they maintained about that announcement. They rejected our request, claiming all of the records we sought were subject to the open investigation exemption in b7A. But 7A exempts only those records that would harm ongoing investigations by releasing non-public, or previously unknown information. It doesn’t provide a blanket greenlight for government secrecy whenever something is under investigation.

So we FOIA’d the processing notes for our first request. When CBP responded, we found that in addition to our own request, several other media requestors had their Uvalde FOIAs categorically denied due to a pending investigation. We also learned that was on the orders of someone at the Border Patrol, who informed the CBP FOIA office it wouldn’t release anything because of the pending investigation. So, exactly what they’re not allowed to do.

Thanks, Meta FOIA.

We can also learn how the agency’s FOIA office conducted its search and who reviewed the records we received (or didn’t). It’s a means of keeping records custodians honest, and improving the effectiveness of our requests.

3. Meta Analysis

Chasing Amy notwithstanding, sometimes it’s okay to be a tracer. Requesting all of the records a custodian released within a given timeframe containing a given set of phrases or terms, or involving a given official, can help us learn what we don’t know that others might. Not everyone posts their FOIA records immediately on DocumentCloud. In fact, lots of people squirrel “public” records away in private folders for years.

But if we request stuff that’s of interest to us and that the custodian’s already processed and released, we increase the chances of getting information we want and decrease the time it takes to get it.

So, we might seek out open records logs and then request the released records from prior requestors’ FOIAs.

Lazy? Maybe. Tracer? Perhaps.

Work smarter, not harder, though.

Happy FOIA’ing, Media Requestors!