Avoid FOIA fishing expedition for more expedient retrieval of records

NASHVILLE, Tenn. (Nov. 10, 2012) – The secret to more expedient retrieval of records under the Freedom of Information Act is to avoid going on a fishing expedition, suggests a U.S. Army Corps of Engineers attorney.

Pamela Schmaltz, assistant district counsel for the Nashville District, works in her office Nov. 7, 2012. (Photo by Lee Roberts)
Pamela Schmaltz, assistant district counsel for the Nashville District, advises anyone submitting a FOIA to be specific as to what record they are looking for and to avoid going on a fishing expedition. (Photo by Lee Roberts)

According to Pamela Schmaltz, assistant district counsel for the Nashville District, what this means is people should clearly describe the documents, electronic data, or even video they seek when making a FOIA request.

“We regularly ask requesters to narrow the request if they just ask for a voluminous amount of material that would take way, way too long to find,” Schmaltz said.

Schmaltz explained that sometimes the task of researching, searching for, identifying and duplicating data is a colossal task for a small staff, and that can push the limits of a 20-day requirement to provide it to the requester. She said oftentimes this process is lengthy and information is provided in increments, if it can be found at all.

The biggest offenders of going on fishing expeditions and requesting large amounts of records, Schmaltz stressed, are the entities that are exempt from paying for the retrieval and reproduction of the documentation.

Go to FOIA.gov for information about the Freedom of Information Act
The U.S. government has a Freedom of Information Act website to assist the public with submitting requests for official records. (Photo by Lee Roberts)

A Citizen’s Guide To Request Army Records indicates that the first 100 pages of records are provided by the government at no cost for educational institutions, non-commercial scientific institutions conducting scientific research, the news media and others for personal use.   “Commercial requesters have to pay for all fees for search, review and duplication,” according to the guidance.

Schmaltz said based on the fees involved with commercial FOIA requests, it is easy to pinpoint that this is the group which best narrows the scope of the documents needed.

“A commercial requester who has to pay for every page, and for the hours spent to find and reproduce those pages, typically is going to be more targeted in their request,” Schmaltz said.

Pamela Schmaltz, assistant district counsel for the Nashville District, works in her office Nov. 7, 2012. (Photo by Lee Roberts)
Pamela Schmaltz, assistant district counsel for the Nashville District, provides tips for the public wanting to successfully retrieve government records. (Photo by Lee Roberts)

She said some requesters take advantage of the system and ask for broad swatches of information, which is an administrative challenge.  However, for those people looking for specific information it helps to know why the law exists, the exemptions to the law, and what information should be included with a request, she added.

The DoD Freedom of Information Act Handbook explains that “FOIA is a federal law that establishes the public’s right to request existing records from Federal government agencies.”

According to this handbook, there are exemptions to the release of information and “federal agencies do not have to answer questions, render opinions, or provide subjective evaluations.”

Schmaltz provided several tips to help requesters successfully retrieving information.

  • Be aware of the timeline: The 20-day clock starts when the FOIA is received by the staff, not when it comes in the mail or is sent electronically. This means if it arrives after business hours on a Friday, the clock begins the following Monday morning.
  • Be sure to provide accurate contact information: Be sure to include name, phone number and e-mail address.
  • Express willingness to pay: Also include the highest threshold amount. For example, for the information requested a person may be unwilling to pay, or perhaps is only willing to pay $25 or $50. Be specific.
  • Have a narrow focus: Again, be very specific on what records are being requested. For example, asking for every record in a work center is not narrow enough. Asking for a specific permit would be detailed enough to retrieve.

Schmaltz advises news agencies and reporters to contact public affairs officials first before going the FOIA route because the office can take questions and make requests for information more expediently. It is permissible to make FOIA requests and media queries through public affairs simultaneously, she said.

Bloggers and citizen journalists can request waiver of fees in the news media category.  However, Schmaltz said she has not received any such requests during her five years of processing FOIA requests.

“Any citizen is afforded the right to FOIA.  Where it would come in (for bloggers) is the exclusion to cost, fee waivers,” Schmaltz said.  “One of the requirements of the fee waiver is that the information they seek is in the public interest and is disseminated to a wide audience.  And I think that is where you are going to find that a blogger typically can’t show that they have a wide audience.  There are exceptions to that. Obviously there are some bloggers with a very big following.”

In processing a FOIA request, she said the office would check on the circulation or web traffic for a blogger.  Some would likely not meet the threshold of being able to disseminate information to a wide swath of the public and could possibly not be granted fee waivers under the media category.

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