John Tsarpalas: Every candidate and activist should understand the basics of the Freedom of Information Act. And so today, we’re going to have a lesson on it. It’s using FOIA, Commonwealthy #46.
Well I know that I have mentioned in at least three previous podcasts that I was going to have somebody on Commonwealthy to talk about how to use FOIA, the Freedom of Information Act. And I’m thrilled to have Jason Hart here today.
Jason’s an Ohio based reporter. He covers labor issues for watchdog.org with a focus on right to work, public employee unions, and ObamaCare. And before Watch Dog, Jason was communications director at Media Trackers Ohio, and his work has been featured all over the place: foxnews.com, Hot Air, The Daily Signal, Red State, Washington Examiner, Town Hall, and a whole host of other places.
His investigations look at labor union spending and ObamaCare’s Medicaid expansion. And he’s been cited by national commentators including Michelle Malkin, Erick Erickson, Dana Loesch, Mark Levin. Jason can be reached on Twitter @jasonhart, and we’ll get into his email address at the end of this podcast.
John: Oh yes, I always mess up.
Jason: The A is in my Twitter handle. It’s in my Twitter handle, too.
John: @jasonahart, who the heck is Jason with no A Hart? That’s the question.
Jason: Some guy who grabbed that Twitter account before I could and hasn’t tweeted in years, of course.
John: I understand although with a name like Tsarpalas, they’re all relatives. At least, you’re talking to somebody in the family. Anyway, welcome.
Jason: Thanks for having me.
John: FOIA, something that comes up a lot in my life as an activist, and even in my life in terms of campaigns. We did a podcast back three, four months ago with a fella who used Freedom of Information Act on his county treasurer, and he found all kinds of discrepancies including that the county treasurer hadn’t collected 1.2 million in back taxes.
And he found all that through the Freedom of Information Act, and guess what? He then ran for county treasurer, put all that info out, and he won his election. So Jason, start from the beginning. What’s the Freedom of Information Act about and what are you able to do with it?
Jason: Sure, the Freedom of Information Act is a federal law that defines the public’s access to public records. And a public record is defined as basically any existing correspondence or data that’s maintained by a government agency that’s not considered in some respects, classified that doesn’t contain some kind of personal identifying information. You can’t submit a FOIA request for the social security numbers of your political enemies or anything like that. But…
John: Unless you’re Hillary Clinton anyway.
Jason: Right. Unless you know the right people and unless you’re in the right political party and are an elected official who has risen to the necessary level of prominence. And actually, it’s funny that you mentioned the Clintons because an organization called Judicial Watch has used FOIA in a number of cases, most prominently in the news recently. The example where we have Hillary Clinton’s emails being published by the State Department. And even though there’s a lot of redactions in those emails and a number of those emails contain classified information. So at this point, there are emails that they won’t release, even redacted versions. An enormous amount of information has been exposed to the public because of the successful use, in this case, of FOIA.
Now, the states have their own state level laws that are modeled on the Freedom of Information Act, and it varies a little by state. But there are a few basic things to keep in mind when you’re using Freedom of Information Act to get your hands on either some public record that isn’t published online or isn’t released in any sort of government publication. Or some correspondence, if you get word that there’s something fishy going on with some government contractor and a local agency or any number of other things that might come up that a government official, whether they’re elected or some bureaucrat, may not want the public to see.
They’re obligated in most cases to release that information if you submit the proper Freedom of Information Act request. And I should mention before I forget because it’s really important. This is a great tool. The Reporters Committee for Freedom of the Press has a lot of FOIA information on their website which you can find at rcfp.org. And they actually have forms where they’ll generate a Freedom of Information Act request for you, either for the federal government, if you’re requesting information from some federal agency, or for the specific state that you live in or the state that you’re doing some research on.
When you’re submitting a FOIA request, there are a number of really common roadblocks that the government agency will always try to throw in front of you. They’ll always complain that your request is not specific enough. Specificity is a real issue because typically, if you’re looking for public records, the reason that you’re requesting a public record is because you want to know something you don’t already know. And that makes it very difficult to submit a successful FOIA request because you can ask for something as specific as you’re able, and a lot of cases, the agency will say that you did not request specific enough information.
For example, correspondence between a specific politician and some specific business that maybe is trying to get work with the government, or a correspondence between two politicians. If you ask for, just to give an example, the last year of emails sent to or from your governor, you’re going to get a response that says, “Please submit a more specific request,” and just basically declining your request.
The important thing is to be as specific as possible and ask. If the open records officer that you’re corresponding with tells you that you’re not specific enough, ask them, “Look, how can I be more specific?” Tell them what it is you’re looking for. And most of the time, these individuals will try, unless they’re actively stonewalling you, will try to explain, “Look, here’s why I denied your request. If this is what you’re looking for, maybe you could ask for this instead.”
And that brings me to another related point. When you’re making an open records request, a lot of the time, the first step is figuring out, “Who the heck do I ask for this information?”
You may not even know what state or county level agency maintains specific data. And so the first step is to do a little bit of research and figure out, “Okay. Who’s going to have records of this spending? Which office is going to be most likely to have corresponded with this activist group while this legislation was being pushed?”
And once you figured out the agency, just reach out to their communications office. Once you figured out what office is most likely to maintain the records that you’re looking for, whether it’s correspondence or spending data or whatever it might be, typically your best bet is to reach out to the communications officer in that agency.
And depending on how big the agency is, depending on how sophisticated their communications shop is, sometimes the person who’s going to be responding to your open records request will just be an executive assistant or some administrative assistant to an elected official.
Sometimes the communications office, the person who handles their press request, will respond to your records request. Sometimes, it might be a lawyer in the office that gets the records for you and sends them back to you. Sometimes they may actually have a dedicated open records officer. It just depends. So there’s not any real specific formula. It’s just typically best to find the communications office and reach out to them and say, “Look, I have a request that I like to submit for some open records, who’s the best person to contact with that request?”
And generally speaking, a lot of offices more and more will just accept a FOIA request in an email. And if you look at that website that I mentioned, rcfp.org, the Reporters Committee for Freedom of the Press, they have some really helpful tips for how to format that request and specific words and phrases to use, and words and phrases to avoid.
But generally, if you just type an email and ask in more or less plain English, “I am requesting under…” I live in Ohio, so “…under Ohio’s open records laws, access to and copies of correspondence between this elected official and this appointee,” or, “I’m requesting access to and copies of information about the cost of such and such program and the enrollees of such and such program.”
And typically, that’s the first step. Depending on how helpful the agency is, you might just get a response to that initial request. If they’re really busy and they don’t want to respond to your request or they’re actively trying to avoid responding to your request for political reasons, then they’ll probably tell you that you need to be more specific, or that no records exist relevant to the request.
But basically ask, and if your records request is denied, ask why it was denied and try and just go through a few iterations until you get the request just right. If they want some sort of a formal document, say they have a specific form that they need you to fill out, or you have to send it as a PDF attachment, or a Microsoft Word document, or you have to fax a scanned copy of a printed request, or whatever archaic process they might want you to go through, typically they’ll have to spell that out. And once they explain what their process is, of course you’ll want to comply with that process to the best of your abilities so that you get access to the records that you’re looking for.
John: Are you usually supplying a date range like in a certain…from such January 1 of this year or 2 years whatever the…
Jason: Yeah, that’s typically helpful if you know at some point in the last quarter if, let’s say you get a tip from somebody in an agency, “Hey, you might want to look into this. I can’t tell you anything on the record, but you should submit a FOIA request,” they might be able to give you an idea sometimes. But it does help to specify a date range. You can specify a specific topic. “I want to see all correspondence between the governor’s office and the finance committee and the House of Representatives related to this topic.”
And you can include a few specific words or phrase in quotes if you feel that that will help. And generally because so many records now are kept electronically, unless you’re requesting an enormous amount of data, you can get a response to a records request via email, and they might send you a PDF, they might send you a zip file. They might send you a spreadsheet depending on the format of the records, depending on the size and the quantity of records that you’re requesting. A lot of the time, you can send your request by email and get a response back by email.
It’s important to specify how the person you’re reaching out to can follow up with you. Obviously, if you’re sending them an email, then they’ll have your email address. But include as many methods of contact as possible so that they don’t have any excuse.
Basically, your goal when you’re filing a FOIA request, if you want to get access to records, you want to provide as few excuses as possible for the public official or their office to stonewall and refuse access to those records. So make sure they know how to contact you, make sure they know that, “Here’s my mailing address if you need to send me the records on a disk or if you need to send paper copies of the records for whatever reason.” And be as flexible as you can in terms of how you get those records because that will minimize the opportunities for the public agency to avoid giving you whatever information it is that you’re trying to see.
And depending on the state laws, in most cases, the public office can charge you a reasonable fee for those records. And the definition of reasonable is going to vary depending on the request. It’s going to vary depending on the state.
And in most cases, they have a requirement to respond within a reasonable amount of time which, again, is going to vary whether you’re following FOIA requesting federal records, or requesting state or local records under a state open records law. But in most cases, if you don’t get a response in 10 days at the long end, I would recommend following up and politely saying, “Hey, I just want to check on the status of this request to make sure that you’ve received it, address any questions you have about the records that I’m requesting access to.”
And then, if you don’t hear back after another week, it’s important to just basically stay on them and remind them that you’re requesting access to what you believe to be public records that you should have access to under your state’s open records law, or under the federal FOIA law. And remind them, I guess, decreasingly gently as time passes that you should have access to these records because they’re public records and you’re a taxpayer.
And ultimately, they have a legal requirement to comply with a FOIA request that is properly formatted and submitted through the proper channels, and they have a certain obligation to help you out if you’re submitting a FOIA request and asking in good faith for something. If you’re not sending 300 requests every day and just spamming them with an absurd number of requests for very specific or very vague documents, the burden is generally on the public official to make a good faith effort to get you the records that you’re requesting at minimal or no cost.
John: So when a FOIA request comes in, does it go into a branch of government that processes these, and then it goes out to the branch that you’re trying to get information from? And then it comes back through that system or does it go directly say, you want something from Department of Justice, does it go directly there or does it go…do you know how it siphons?
Jason: Typically, you’ll contact the office that you believe maintains those records you’re requesting and typically that…
John: So it goes to the department that you’re looking into…
Jason: Yep. And typically that office will maintain the records and will have to essentially shepherd you through the whole process to get access to those records. A good example of a very bad example would be of course, the Internal Revenue Service. Back when I was working for Media Trackers in 2012 or 2013, I forget, when the big IRS targeting scandal broke, and it came out that the Cincinnati office that was responsible for approving requests for 501C3 and C4 nonprofit status had been essentially up to no good, and had been improperly targeting conservative groups.
I submitted what I thought was a pretty specific, pretty well-formatted FOIA request to the Internal Revenue Service asking for the names of any of the officials that may have been involved in that process. Names of specific employees that may have been involved in starting this process of targeting nonprofit requestors for specific use of words like conservative or freedom or whatever in the organization’s name or purpose. And over the course of two or three years, every 90 days or so, I would get a letter, a form letter from the IRS letting me know that they were still working on my request, but they needed just a little more time to get back to me.
And after a series of probably 10 or 12 of these letters, finally I got a notification that, “Oh, wouldn’t you know it, there were no records responsive to the FOIA request that I had submitted.” Of course, at that point, the story that I was trying to write a couple of years earlier had long since passed me by, and there was no need to follow up at that point. But it’s going to vary. Some local agencies, even if they don’t have a dedicated open records person that handles those requests, they might have a communications director that does a really great job that makes a serious effort to respond to all those requests in a timely fashion. And they’ll help you if they’re not sure what you’re asking for, and they’ll guide you through the process of submitting a good request, and then getting you the records in a timely manner.
Some large agencies might have a dedicated public records office that also does a good job. And then, of course, you have the other agencies that whether large or small, either they’ll give the excuse because they’re small, that they just don’t have the time or the bandwidth to respond to your request, or if they’re large, they will follow every legal loophole they can to say, “If you want to complain about the fact that I’m delaying for another 90 days, then you can contact this office and we’ll sick a team of lawyers on you. But otherwise, please allow us more time.”
So it’s going to vary, of course, when you’re dealing with the government just like with private industry, there are good actors and bad actors at every level. But typically, FOIA can be a very powerful tool for requesting records and correspondence and whatever else you might want to see access to at the federal and at the state and local level as well.
John: A few years back, more than a few years back, this was about 2008, probably 2009, anyway, had a good friend who was considered a FOIA expert. Unfortunately, he died and passed on. He would come up with some amazing strategies. He would send FOIA requests for different parts of what he needed from different people, from different addresses so that the office didn’t think it was all coming from him. Is this something you need to do and think about? Or is that just getting too carried away?
Jason: It shouldn’t be. Obviously, if you have an instance…
John: It shouldn’t be, but he always thought the government was…they’re trying to hide it so maybe if he got different requests at different times about different parts of it, and you would never get the whole picture from one spot, that they might mess up and send it. I don’t know if he was right or not.
Jason: Yeah. They might send something that they didn’t intend to send. I think going back to the IRS example, obviously, there are examples of bad actors sometimes at the highest levels. And so, if you have difficulty getting records where you’re confident that those records exist, you’re confident that somebody is just trying to hide what should be public information from the public, then sometimes you may want to try to have a friend request the information if you are somebody who’s seen as a troublemaker within the office.
A good example of that here in Ohio, for months, I’ve been trying to get access to demographic information about enrollees in ObamaCare’s Medicaid expansion, but because I’ve covered that issue for several years now, the Kasich Administration knows who I am, and the communications director in the Ohio department of Medicaid ignores me. The director of the Ohio department of Medicaid ignores me. So I’m a taxpayer, I’ve lived in Ohio all of my 32 years, and I’m requesting what I honestly do believe ought to be public records, and I want those public records.
Not to do something terrible and nefarious with them, but in order to better inform the public, but that’s something that in this case, the public officials do not want.
John: Well it’s your right to those records. Those are the public’s records, right?
Jason: Yeah. And on a related note, sometimes there’s a misconception among people having submitted FOIA requests before or haven’t requested local data that they have to justify, they have to explain. This is why I’m looking for these records, and this is what I intend to do with it. There really is no burden on you as a member of the public or a reporter. There’s no burden on you to explain yourself, to justify your request for public records. All that’s really important is that you ask the appropriate agency, you go through the appropriate channels and you are specific enough that they know what records you’re talking about.
And you are cooperative in terms of being willing to provide your mailing address if they insist on sending the records in some kind of a physical format. And you’re willing to provide any reasonable fees that may arise. So you don’t have to worry about explaining yourself in the course of a seven paragraph email. “Here’s the history of why I’m looking for this information,” and, “Here’s why I think it’s important that the public should know,” and, “Here’s how I plan to present it once I receive it.” That’s really not necessary. You just have to let the public office know what it is you’re looking for, and if you follow the steps for submitting the request correctly, then they have an obligation to provide the records regardless of what you intend to do with them.
If you have no intent to publish them and you just want to know just for your own curiosity’s sake, some public information, that doesn’t matter in the eyes of FOIA because it’s public record and you’re a member of the public ultimately.
John: Is there some kind of an ombudsman or a recourse that you can go to if you’re not getting responded to, or is this just a matter of you’ve got to go to court or threaten them with something legal?
Jason: Well at the federal level, ultimately, I think it would always fall to the Department of Justice. Thankfully, I’ve never had to go through that whole process.
John: You never had to go that far. I was just curious if you know.
Jason: But yeah. Ultimately, FOIA is federal law and there are certain penalties, I’m not sure precisely what the penalties are, but there are certain penalties for a government agency or a bureaucrat that fails to comply with the open records laws of the country. And so at the federal level, I believe it’s always the Department of Justice. And at the state level, it varies depending on the state law here in Ohio. I think the attorney general’s office ultimately is responsible for all of Ohio’s sunshine laws and that includes Ohio’s Open Records Law and Open Meetings Act.
But it’s going to vary by level, and typically, you can look up. If you do a Google search for your state’s open records law, you should be able to pretty easily find the specific text of the statute. And it will ultimately specify what the recourse is if you have made a good faith effort to request records, and you seriously are convinced that the records exist and have not been provided to you for illegitimate reasons.
If the office just insists that there are no responsive records or if the office says that you haven’t been specific enough when you feel that you have been specific enough, then you can just look to your state’s law or look up the text of the actual Freedom of Information Act at the federal level and figure out what your next steps need to be. Unfortunately, in most cases, I think those next steps would involve some kind of a consulting with an attorney probably, but it’s just going to vary based on your level of comfort with the law and following through the steps as they’re set out in the specific statute.
John: Okay. So you make your request and hopefully you get a response within a reasonable amount of time, week, 10 days, 2 weeks. And you get this information in. What do you do with it then? You just have to sit and sift through it all, read it all, try and figure out and put together a thesis, a hypothesis? I don’t know what the right word would be.
Jason: Yeah, and if you go to the State Department’s website, you can actually find all of the emails that have been released as a result of the FOIA requests that have been submitted for all of Hillary Clinton’s emails from her private server while she was the secretary of state. And there are a lot of them, and a lot of them are nothing. And occasionally, as you sift through, you’ll find something.
But ultimately, it does boil down to sifting through by hand, and if you have some kind of a search tool on your desktop that will help you search for a specific word in those documents or for a specific date or number. If you’ve got reams and reams of data in a spreadsheet or a comma separated file or some other format, that is oftentimes, the last hurdle to really making good use of public records.
Sometimes, you don’t have trouble requesting the records and the public office will provide them to you in a timely manner and free of charge. But then, at that point, you do have to look through them and make heads or tails of what it is you’re looking at, and make sure if you’re sharing it with a local newspaper, or if you’re writing about it for your personal website or you’re taking it to some elected official, obviously, you want to know that what you’re passing along is accurate. And oftentimes, reading through all the records that you received can take a pretty serious amount of your time.
And sometimes, they’ll send you just what you’re looking for and you’ll have a smoking gun in a single PDF file, and that’s all that you need but that’s a very rare occurrence in my experience. You have to look through a lot of emails about picking up the kids from soccer practice, and that’s why you have to leave work early this day, and a lot of emails about what type of bagels so and so likes when you’re going out on a coffee run or whatever, before you actually get to that correspondence that tells you something untoward was happening or that shows some kind of connection that you suspected was there but could not prove without those public records.
Oftentimes, it takes a serious amount of drudgery to just look through the records. And sometimes, I think that that is intentional. If you know what you’re looking for and the public official or the bureaucrat that you’re requesting it from also knows what you’re looking for, and you want to find it and they don’t want you to find it, sometimes the last obstacle that they can throw in your path is just burying you in a crazy amount of correspondence or data, and hoping that you can’t find your way through it.
John: Okay. So it comes to you…usually it’s emailed to you, and it’s often in a PDF format?
Jason: That has been my experience, yes.
John: So do you just sit and take notes or do you try and print this and then cut it up and put things about some things on certain piles. And put Post It notes or what’s a way to work at it? How have you approached it to work at it by get it into smaller pieces and sort it out? It’s just a matter of the person’s…
Jason: Yeah. It’s important as you’re digging through it to make sure if you find something that you can find it again easily. In my case, I’m used to doing pretty much everything on the computer. So I’ll typically sit at my desk and look through documents, and if there’s something that I want to look back at later.
Typically, if you have a recent version of Adobe reader, you can actually make notes or you can highlight specific text. And I’ll generally maybe create a separate folder on my computer where I can drop files that I think might be something important, might be something that I want to look back at later.
And so as I go through, I’ll just either make a mental note of, “Okay, I’ve been through everything up to the documents starting with one nine or I’ve been through everything in this folder, or I’ve been through everything prior to this date.” And then just go through and try to sort out, make a copy of anything that seems important, drop it in a separate bucket for a closer look later on.
But yeah, once you have an electronic version of something, you can do pretty much whatever you want to with it in terms of making sure that it’s in a format that is convenient for you. So if you want to print a big stack of documents, and sit in a recliner and flip through them with a highlighter and a stack of Post It notes and throw everything that doesn’t have anything interesting in it into the trash can as you go through. If that works best for you, then that’s fine, and the great thing about a FOIA request is again, the burden lies on the public official to provide the materials.
And sometimes, they won’t provide them in the format that you want. But usually, it’s most convenient for everybody to send the records in an electronic format. And once you have that electronic format, then it’s pretty easy to try and sort out what’s going to be the quickest way for you to pour over all that information and find out whether there’s actually anything interesting in there that could be a story or it could have an impact in an election or whatever it is you’re looking for.
John: So it’s a little like treasure hunting. You got this pile or I don’t know, it reminds me when I was a kid, we used to have a picnic and they had a big pile of sawdust and they’d put coins inside it, and you had to dig through it. And then you’d find a coin, and a whole bunch of kids would jump at the pile. So I think it’s exciting to get this data dumped from the government, and then you get to go look for nuggets in it that are going to pay off, right?
Jason: Yeah. That’s my personal feeling on it, but you have to go into it with your eyes open and knowing that if you get a response to a request, more likely than not, there’s going to be a lot more sawdust than coins. And depending on the request and what records you’re asking for and what agency you’re requesting those records from, you may not even ever get the sawdust.
It’s just a matter of being persistent and knowing what it is you’re looking for. And knowing how to clearly communicate, “These are the records that I’m requesting,” and go through the process as patiently as possible. And always remind the person you’re corresponding with in that government agency that they work for you, not the other way around.
John: I want to say bless you. It’s people like you, watch dogs that try to keep the government honest. And if it’s not people like you doing FOIA requests, and taking the time, and the hours, and the labor, and the mental focus to go through mountains of information like this and to come up with stories and keep people honest, I think government would be totally run amuck. And so thank you for what you do and I just think it’s so important. And I want to encourage activists to step up.
If you’re a blogger or if you are just interested in some local agency, your local school board, your township board, do you know what’s going on there? You might attend the meetings, you might hear a little bit but what’s going on in the background, every now and then, I think it’s worth the local community activists’ time to shoot off a FOIA request and get a little information background on something that you’ve been watching. And see if you can find out a little more what’s going on. Even if it doesn’t lead to scandal, I just think it keeps them on their toes that someone’s watching.
Jason: I agree.
John: And so thank you for watching. Any other thoughts on FOIA for our activists?
Jason: I know I’ve mentioned it a couple of times already but just one last time, I would encourage anybody who’s interested in using FOIA, whether at the federal, state, or local level, to check out the resource rcfp.org, the Reporters Committee for Freedom of the Press. They’ve got a lot of useful background information and even forms that you can go through that will help you generate a FOIA letter so you don’t have to type up a whole lot of extra fluff on your own.
And it’s one of those things where anytime we start talking about government acronyms, it can sound intimidating pretty fast, but it really is a matter of if there are some information that you believe is a public record and you can’t find it anywhere and you think it’s important information, either just for your own interest or for other taxpayers, then you can use this as a way to request information. And the burden is not on you but is on the government to respond in good faith to those requests.
So just start by figuring out what you’re looking for and what agency should have it. And reach out to the communications office in that agency or reach out to the administrative assistant of your, you know, your county commissioner or whomever. And they should be able to work you through the process because chances are, even if it’s a small office, they’ve dealt with FOIA requests before and they can help you streamline the whole back and forth. And figure out what it is you’re looking for and hopefully provide you the records that you’ve requested and get you on your way.
John: Well, we will have a link to rcfp.org in the show notes for this podcast, and we’ll also put it on the commonwealthy.com/resources page so that it’s always there if people are looking for that link and they need to find it quickly. And we hope that you use this, and we hope that you found this concept interesting. FOIA’s something you’d play with, you start, you just jump in, do a little bit, you’ll get some letters back and you might find you’re getting what you want. You might find you’re not, and then you try it again.
It’s like learning the Web. You just do a little bit and you try it, and then you go back another time and you hit it a little different way, and try this, try that, click on this, click on that, same thing. That’s what I found FOIA requests to be like.
I did some back in my St. Adams days. We had a bunch of Wikis that had information on them, and we were digging around in different things trying to find information for our Wiki sites, and it was fun. It was interesting. And yet for me, at times it was frustrating because you wouldn’t get an answer quickly. That’s like, boy, by the time you get the information, your enthusiasm has dropped, and I think that’s what they’re trying to do to you, which means it’s even more important to keep after them.
Jason: Yes, absolutely. Persistence is key where FOIA is concerned.
John: So Jason, how can people get a hold of you because I’m going to forget the A in Jason A. Hart. So give us your addresses.
Jason: Sure. You can find me on Twitter @jasonahart. You can find my work for Watch Dog at watchdog.org.
John: And Hart is H-A-R-T.
Jason: That’s correct.
John: Just so everyone knows. Well thank you so much. I really appreciate it. We will have a link to the rcfp.org along with Jason Hart’s contact information in the show notes at commonwealthy.com. And we always have transcripts of every program. In case you like to go through it, read it, pass it on to a friend.
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