Requests for Public Records Under FOIA: How Should Local Governments Respond?

by Emily Nagle One Beacon Government Risk

The Freedom of Information Act (or FOIA) was enacted in 1966. Originally, it was intended to provide a means for journalists to maintain oversight and accountability of the government. FOIA’s usage has evolved considerably since its inception over five decades ago. Today, private individuals comprise over 20% of requests made under FOIA; businesses make up another 39% of total requests.

FOIA is intended to provide access to government records—this includes any and all information regardless of the format it’s stored in. Official documents, recording of phone calls, emails, surveillance camera footage, and countless other varieties of data are covered by FOIA and are legally mandated to be accessible through request at any time.

Any amount of information can be requested by an interested party. A request made under the Freedom of Information Act will never be denied for “asking too much;” such a denial would be illegal. Requests can also be made regardless of the level of federal government holding the information. The process is informal and simple, which means that just about anybody can complete a request.

If FOIA applies only to Federal agencies, why should my public entity care?
Oftentimes, individuals and organizations utilize the FOIA acronym in reference to general public records laws as a whole. Each state throughout the country has its own version of FOIA; this individual iteration of the Freedom of Information Act applies to each level of government within a state.

In one instance, a Florida newspaper sued for access to a city manager’s text messages. A tip called into the publisher indicated that the city manager had been involved in text conversations with a lobbyist; within these conversations, the city manager asked the lobbyist for favors and preferential treatment, including free luxury skybox tickets to a college football game.

The city denied the texts’ existence and argued that they didn’t preserve public officials’ text messages despite the fact that doing so is required under Florida law. Once the newspaper sued and acquired the texts (revealing corruption and pursuit by the FBI), the city settled the case by creating new policies for preserving text messages and added it to their existing process of preserving emails and other written correspondence.

Tips for being prepared
There are several ways that public entities can prepare themselves for requests of public records made by businesses, reporters, and the public; doing so is crucial to maintaining integrity in a culture that’s aggressively seeking out problematic behavior.

One key way to afford your public entity some measure of protection is to assess your internal procedures and compare them to the State public records law. Adopt rules and regulations that are closely coordinated with your legal counsel, board, council, or commissioners. The best way to avoid claims is to keep away from engaging in problematic behavior to begin with. You can ensure this happens by having good policies in place for internal procedures.

A strategy of ignoring a request for information rarely succeeds and often increases the frustration of the applicant and therefore the likelihood of a suit being filed. So it’s not just a retention policy, it should include processes from receiving the request all the way through to sending the requested information. Also, specific attention should be focused on what cannot be released and what should be redacted to protect the rights of others whose images or personal information may be included in the requested document.

Beyond this, consider doing a little bit of website renovation. Add a section to your site that informs people about their rights; offer instructions on how to submit a request and information about what the process of requesting and receiving information looks like.

Include information about anything that you think a requester may want to know on the page. Consider integrating a small FAQ section to discuss response times, fees, appeals, and other facets of FOIA requests. One example of a website that integrated these features into their user experience can be found here.

FOIA laws vary by state. It’s important to keep abreast of these laws in order to better serve both the individuals who make up your public entity and curious external members of the public. For a list of laws and relevant information by state, visit the National Freedom of Information Coalition.