[This transcript has been lightly edited for readability and clarity]

Reena Novotnak: This is Footnote Forum, a production of the Law Review at City University of New York School of Law. I’m Reena Novotnak, your editor and host, and I’m joined by my staffers:

Dan Moczula, Rachel Goldman, Cesar Ruiz, Maya Kouassi, Ariel Federow, Shezza Abboushi Dallal, and Andrew Miller.

This year, on the podcast, we will be focusing on the Freedom of Information Act and the Freedom of Information Law, or FOIA and FOIL. Right now, you’re listening the second half of our first episode with Professor Cox—

Professor Cox: Hi, I’m Douglas Cox, and I’m a law librarian here at CUNY Law.

Reena Novotnak: Professor Cox’s research focuses on the intersection between national security and information policy, and we’ve invited him on the show to answer some of our most pressing questions about the nature of FOIL and FOIA. Professor Cox: FOIA was passed originally in 1966 on the federal side,¹ and New York FOIL came along later in 1974.²

They were both created as part of a plan to, sort of, increase government transparency. On the federal side, there had been earlier—under the Administrative Procedures Act—a provision that was designed to do the same thing, but it had been in practice used to essentially deny access to federal records. So, the FOIA litigation of 1966 was designed to expand that access. The history of it has been the history of no matter how they change the law, or how they amend it, agencies will try to find new ways around it and new ways to interpret it. And a lot of the amendments over the years have been to sort of nail down some additional issues that have been coming up in the courts. There was the original ‘66 law;³ it was amended then in, I think, ‘74,⁴ that added some additional things that were going to make it more clear that it applied to intelligence agencies and expanded that scope, which caused a lot of problems. I think it was the ‘74 amendment that then President Ford had vetoed, and then they had to override the veto to get it passed in a law.⁵

Then there have been more recent amendments. There was the E-FOIA Act, which was making it absolutely clear that records include electronic material that is being retained by the agencies.⁶ And then the most recent amendments were also a highlight, in terms of fixing some of the misuse of the fee schedules as I was mentioning earlier—so making it more difficult for agencies to be able to apply fees to requesters, especially after the agencies have failed to comply with the basic precept of FOIA that you provide records within twenty working days.⁷

They also put in an interesting one which for longer-term research is an important limitation, which is one of the most commonly used exemptions is called “(b)(5)”⁸ which is the deliberative process exemption. And the FOIA requester community sort of refers to it as the “withhold anything you want” exception, because within the “deliberative process,” agencies often claim something’s (b)(5) and “well, we can’t release this because it would chill further communications in the future about candid conversations.” But it’s been used so broadly. And also it’s been used over time, so they did put in some restrictions on it that limits it to twenty-five years,⁹ because you had situations like with the CIA, who continues to just hold onto their records. And you can have—they’re claiming that they can’t give you something from thirty years ago because it’s covered by (b)(5), it’s a deliberative discussion that was occurring. And so, they’re at least putting some sort of time limitation on that as well.

Not all of the amendments over time, however, have enhanced transparency. There was a particularly difficult law that was passed in—I think it was the early ‘80s—the CIA Information Act, that basically excludes significant portions of CIA operational records from FOIA altogether.¹⁰ So they’re not subject to FOIA on the basis that those records would almost assuredly be classified. But it has had the effect that then, the CIA categorizes a lot of things under that that maybe should fall under an exception to that rule. So generally, I think the model has been amendments to sort of further refine and improve FOIA, but sometimes it’s also further increasing withholdings.

Andrew Miller: Is there anything that works to open that up as far as that restriction around the CIA?

Professor Cox: No, and in fact the DOD [Department of Defense] has been wanting to get their own sort of similar exception and they keep trying to put it in at various points, [laughter] then it gets kicked back.¹¹ And it is interesting, sort of how in the context of these amendments and bills that come up, because there’s often a FOIA bill and it’s interesting because sometimes you never quite know who the senator or member of the house—there are some of them that really care about FOIA and they will get involved in these things. And sometimes it’s somebody you don’t expect who will sort of knock down something and say “no, they should have that.”

Andrew Miller: Do other countries do this, do you have a sense of the model internationally, you know, how far back does this go?

Professor Cox: Apparently, the first FOIA law internationally was Sweden—they have a Right to Press Act from 1766, so, 200 years before the US.¹² But the US was, sort of, earlier in this process, even though it was 200 years later that we had our own FOIA law. According to the UN, in 1990 there were still only thirteen countries with a FOIA law in some form.¹³ I mean, the UN itself interprets the freedom of information as an important human right, and they trace it back to the human rights documents as a piece of the sort of larger freedom of expression.¹⁴ But now there has been an increased emphasis on it, and there are currently over 100 countries that have a FOIA law in some form.¹⁵ And obviously in every country including our own, there’s a difference between having the law on the books and that law having any teeth and that law being effective as a practical matter, but there has been growth within the recognition that citizens should have a right to information about what their government is up to.

Andrew Miller: And do you have a sense, as far as where FOIA stands presently, with the US, are we an outlier, are we a trailblazer, have other countries caught up or surpassed us with regards to transparency?

Professor Cox: I mean, yeah, I think it depends greatly on the country, and also it can depend on who’s in charge of a country at any given time. I think there has been so much litigation in the US and FOIA and it has developed over time, I think some countries do look to the US as a guide for what would this law look like and how would it work in practice. So, I think in some sense we could be part of the trailblazers, because people look to us as an example. But, you know, there could be countries where the transparency is even better and more efficient than how it’s working here.

Andrew Miller: Do you have a sense on the state level where New York is with FOIL comparatively, like, are we an outlier, trailblazer?

Professor Cox: I mean, I think in New York it happened earlier, so, ‘74, so not too long after FOIA, and some of the other states took longer to get that in. And I think New York FOIL has a good reputation in the sense of—while there are of course problems with it—New York is a little bit more forward-leaning in terms of transparency. And they’re looking at it—you know, the expansion of some of it to legislative materials and there are often, again, bills in New York where they’re looking at how can we improve New York FOIL. So, I think it is on the better end. There are some states that have a much lower reputation for how their FOIA law is administered. There are also some states that have, like, weird restrictions, like, only somebody within the state or only a citizen of the state could submit FOIL requests from those states.¹⁶ Also, some of them use their fee categories somewhat punitively to discourage.¹⁷ But then there are also some other states that have very good reputations. Like Florida has a very strong transparency law that, you know, works quite well.¹⁸

Shezza Abboushi Dallal: On a federal level here in the United States, has the FOIA tool been politicized? Do you feel it’s been influenced by changes in administration, both in the legislation and the executive bodies?

Professor Cox: Yeah, I think that it’s definitely an issue that arises and whenever you have, like, a new president—the attitude of that president flows downward through the executive agencies that are responsible for administering FOIA. And it’s interesting because I think it’s sort of a double-edged sword in certain ways, where—like when President Obama came into office, it was one of his things that he focused on a lot was, “we need to increase transparency and we need to release more documents and more information to make the public aware.”¹⁹ And there were high expectations, and then those high expectations were not always met. And people were like, “well wait, I thought that you were talking about more transparency and it looks like based on some of these statistics that we’re withholding more information than we were before.”²⁰ But there can also be, you know, maybe there was additional requests that were made because there was a feeling of, “oh, this should be more open now,” there was a greater expectation of the amount, and I think that then more people were putting in more FOIA requests and focusing on this more. And which also then, sort of, skewed the statistics because then there was still sort of the need to deal with all of those exemptions and when they applied and when they didn’t. And if there’s an increase in requests, there also then appeared to be a decrease in transparency.

And then in the current administration, obviously, there’s been the opposite of that where the attitude is, “we’re going to withhold these things. Why does anyone need these. The national security, law enforcement. Safety is what’s important here and we shouldn’t be releasing this sort of information.”²¹ And from the top down you have a retraction of this view of where the proper line is on public transparency about things. But, it’s a double-edged sword, because you then end up in situations where there’s also been an increase in FOIA activity, obviously, now, that’s trying to figure out what the Trump administration is doing. And it can go too far—which can actually be helpful to litigants.

So in these situations that we’re watching on television, and when there’s FOIA litigation and things, sometimes the DOJ, in trying to defend the Trump administration in withholding things, is taking positions that are even more extreme and making assertions that are so extreme that, in a funny way, sometimes it can be helpful. Because when you take a much more extreme position—when the judiciary is willing to step in, the judges, who have gone through several administrations and have seen the different arguments made over time, are sometimes very resistant to it and are like “well wait, you’ve tried to make the argument before and then what you were arguing is this. Now you’re arguing something completely different, and I don’t know that you have the support for it.” So, when an administration goes too far, there can sometimes be—the judiciary feels a little bit more empowered and they also feel a little bit more of a need to be a little bit more involved and force the issue in certain cases. So, there can be a positive in encouraging the judiciary to act, under FOIA and FOIL, a little bit broader than they maybe would have four years ago.

But there is definitely a feel that as you move from one administration to another, “what is their attitude going to be towards transparency?” And that just filters down because when you go to that government employee who’s looking at your request and looking at, “should we produce this document or not?” That thing, even though it’s sort of a very high level—the idea of “we are moving towards more transparency rather than less” can influence a decision about, “do I redact this or do I not?”

Reena Novotnak: Do you have an instance of that—cases where an agency makes an extreme argument in order to avoid releasing documents, particularly in the most recent administration?

Professor Cox: I don’t have a specific one off the top of my head, although, the ones that jumped to my mind are the situations where the DOJ is being forced to make a position that is contrary to something the President has tweeted.

Reena Novotnak: Oh, okay. [Laughter]

Professor Cox: This has happened a few times where there’s a FOIA plaintiff who’s like, “well the president said this in the tweet” and DOJ is forced to say, “well that wasn’t an official statement by the president, that was just some tweet.”²² And they are still asserting something that is contrary to what the president has publicly said. I guess that is an example of it. I believe there was an example in the context of some of the drone killing—targeted killing memos where again the government was saying that certain things had not been acknowledged and the court was—I think it was a second circuit questioning—about whether certain material had, in fact, been already acknowledged. And the DOJ was still insisting that nobody had ever admitted that.²³

Shezza Abboushi Dallal: Is there any point in time, any administration in the history of the US that has succeeded in outright cutting off the tool?

Professor Cox: Not since FOIA. Over time there have been, you know, increases in trying to limit it. So like under the George W. Bush administration, they issued an executive order that limited things a bit more and was tightening the screws on certain exemptions and how they were going to interpret things and their presumptions about things.²⁴ And then President Obama came in and undid some of those.²⁵ And you also see the influence of different administrations over time. So, some of the amendments that happened in the 1970s, expanding FOIA, were a result of Nixon and Watergate and the situations of hiding documents. And a corollary to what I was discussing, that like when you have somebody that is acting not in the interest of the government, the Congress and judges can become more emboldened and feel the need to step in. And that was some of the good amendments that we got in FOIA. And also, the creation of the Presidential Records Act was as a result of what was happening during the Nixon administration.²⁶

Shezza Abboushi Dallal: This is something that I think you’ve alluded to multiple times, but the past few decades we’ve seen the executive branch increasingly demand deference to secret or covert operations, particularly in the realm of foreign affairs, I think. And how has FOIA changed accordingly, or has it even?

Professor Cox: Yeah that is one area where it’s very tricky, and I think it is one area where the administration that is in has the ability to negatively affect FOIA in the most bold way which is to the extent that, that is the one area, as I mentioned before, where with the (b)(1) exemption for classified information, that’s the one where the Courts give the most deference to determinations by the administration.²⁷ So, in those circumstances when, especially when we have things that are going on, like the torture program, like the NSA Surveillance program, that do involve some classified information that allows a lot of that to be withheld based on those assertions, and that can be driven from the top about how transparent are we going to be. And that is the one that the president I think has the most effect on.

So, in the context of the torture program, for example, one of the great things that President Obama had done was release—voluntarily, using his power as the president—is to release some of those memos, the DOJ memos, about the justification for the torture program.²⁸ And what is good about FOIA and the national security context is once something gets released then you can sort of use that as a bootstrap for other things. So, once the government has formally acknowledged something that was formerly classified, then that information that might exist in other documents that were previously being withheld—those documents can be looked at again. And in the ACLU v. DoD case that was involving torture documents, they did this expertly. As new information was coming out, they would go back and argue it again and say, “you were withholding these documents but those documents relate to this thing that has now been acknowledged.”²⁹ And they got more the next time, and so you see these different even versions of the same documents of internal CIA records. The first time it was produced there was hardly anything that wasn’t redacted. And then after additional litigation, it came and it had more redactions, and then two years later it has even fewer redactions. So, to the extent that information gets out, that is information that then can be used to sort of go back and revisit and get more transparency.

And also, the courts have challenged these situations. So, when there are situations where something has been acknowledged by the government, still sometimes the agency will say, “oh this still has to be withheld.” And the courts in those circumstances, when there has been a public acknowledgement of something, that’s when they start to get a little bit more involved and will say, “actually, I’m looking at this, isn’t this the same thing that was acknowledged publicly by the president?” to sort of push them on these issues where they would normally give a lot of deference.³⁰

Shezza Abboushi Dallal: Do you feel like this executive practice is an overreach of the executive’s powers?

Professor Cox: Yeah, I think there is too much classification and—you know, this is not a unique position that a lot of people within government and formerly within government—that there is this default to classify things. And then I think in the context of FOIA, there is a couple of things at work: one, could there be high-level policy things about “well we don’t want anybody to know this.” The other part of it is also just, “if it’s classified let’s just not touch it. Let’s not look through the issue about whether or not this is really properly classified or not, and if somebody put classified on it, let’s just assert that its classified rather than taking a closer look at it and really digging into it about whether all of the information here is or ought to be classified.” And so, there is both an inertia about it, and there is just, sort of, a high-level policy thing about what should be our emphasis toward transparency.

Dan Moczula: So, you’ve talked a little bit about victories for liberals and the left for using FOIA for government transparency in the ACLU’s requests and advocacy around America’s drone war and torture programs. Can you give examples of FOIA victories from the right?

Professor Cox: Yeah, I think there’s some organizations—it’s interesting because FOIA itself, I guess I would call it a neutral thing. But then there’s the question of who’s using it, what are they requesting? And then also, the records that are requested go to the organization itself or to the requester, and what are they choosing to put out? So, again, sometimes the distinction between right and left is a little bit tricky, but Judicial Watch is one that has been really successful.³¹ It’s an organization that has—during the Clinton Administration,³² during the most recent election, they were very active in the Hillary Clinton emails.³³ And they are unstoppable in a sense that they will make a request, they will follow up on every single request, they will file a lawsuit. And because of who they’re focusing on, and then their success at it, and their ability to go through those records to find pieces of it that support some of their positions that they have, they’ve been one of the more successful organizations that I think is generally considered to be on the right.

Dan Moczula: Do you see a difference between advocates who are genuinely interested in open government and government transparency and people who are more cynically using it for a partisan end?

Professor Cox: Yeah, I see both of that which is—it’s just similar in my mind to the oversight committees within Congress when you have changes and flips in administration and who controls Congress. So, when one party owns the Presidency and the other party owns the oversight committees, suddenly the oversight committee—and the people on the other side—are very focused on transparency and the federal records laws and compliance with things. And then the other ones are saying, “this is just a witch hunt.” And then it gets flipped, and then there’s a new President and the other side has the oversight committee, and then suddenly these issues become important. Now that’s a little bit—even myself—a little bit cynical. But then there are also organizations that are focused on transparency generally and are trying to get as many records as they can and make them available regardless of whether the information in them supports one narrative or another.

Dan Moczula: I’m trying to understand your personal belief in open government—do you just believe in open government regardless of who the administration is?

Professor Cox: I would say yes. I mean, I think I would like for something like FOIA to be administered in that way—that I generally feel like the more information and the more transparency the better. Obviously people will take pieces of it to make different arguments but I think more information being out there— whether it is perceived as good or bad for one side— is generally better than a situation in which transparency is much more selective in a way that is designed to support one side or the other.

Dan Moczula: So, you don’t necessarily—because for me, I can see how open government can fit in both ideological projects. If I’m right-wing, I want to have an open government because I want to track every single every single tax dollar to make sure there is no government waste. And if I’m on the left, I want to make sure the government isn’t using its discretion to harm vulnerable groups. Do you sort of swing towards one or two of those views versus, “open government is just the medium through which the political process should play though?”

Professor Cox: If I had to pick one, I’d pick the latter. I think we need to create structures and procedures and have a FOIA and FOIL that try to maximize transparency with the idea that—or with the understanding and acceptance that—sometimes that will be used in ways that we don’t agree with. And sometimes the effect of it may not be something that we like. But rather than affecting the open government, it’s more of a question of, “what are our structures and what are our other ways of debating things and examining things and understanding things that can sort of ameliorate—or at least highlight—when things are being property contextualized, or when things are being taken out of context to manipulate the narrative.”

There is always a problem—and I think FOIA sort of flows into this, and then it connects to this general problem we have—about information being mediated or not mediated generally. Where the idea that raw documents, raw emails, raw underlying documents that maybe are just a piece of the picture are being made fully publicly available, which allows everyone to cherry pick what they want out of it. Versus the old school way of—there’s journalists and they get some access to some information and then they are trying to put it into context with interviews with experts in order to then mediate a more contextualized picture of it. And obviously, that’s just happened more generally in terms of everybody getting information from the sources that seem to agree with them. And that could be more limited, and in some ways that’s good that not everything is mediated for us, but in another way, it can lead to a bunch of things being taken out of context. And I think also there’s a larger picture. In the context of the Clinton emails for example, there was also just an emphasis on it and the proper, you know, “was there an issue here?” is one question.³⁴ But how should that issue be seen in the larger picture of what’s important, and how it reflects on who should be elected President, is a much bigger topic on either side.

Dan Moczula: And do you have any qualifications or concerns about government transparency, open government, beyond exemptions that are already in the FOIA law? Are there other kinds of concerns that you have about the overreach of transparency?

Professor Cox: I mean I think that the exemptions themselves—again, as they are written— I think they generally follow a reasonable thing, but I think it’s just where the devil’s in the details in terms of the really tricky and grey areas is when you are trying to apply, you know, “what is the balance between the public interest in something and someone’s privacy in a given situation.” And I think those can create situations that are really tricky about— “well there’s some public interest in the disclosure of this information, but there is also a right to privacy of individuals that can arise.” And what the right answer is on any given thing can really be problematic.

Dan Moczula: What’s your favorite government document that you have ever received? [laughter]

Professor Cox: Ah. So, I have to say, in some of my research I was trying to figure out where the documents that the United States seized from Panama in 1989—where they were. And I had tried this little trick—which is outside of FOIA—where I was writing an article for a journal called the American Archivist³⁵ and I want to just find someone who was willing to give me an answer about where these things were. So, I called various places and I said, “I’m writing an article for the American Archivist,” and some places assumed that I must be press because they’re like, “we don’t know who this American Archivist is. Some sort of organization? Some sort of publication?” And so, there was a couple of public affairs offices that actually answered my questions. And then the Defense Intelligence Agency [“DIA”], who I’ve almost never successfully gotten any useful documents out of through FOIA, they specifically said—I was like, “I think you guys have scans or copies of these,” and they came back to me and said “we have no scans or copies of records seized from Panama.” And I said, “okay that’s really clear,” and I even followed up, making sure and they were answering my question and they said, “yes, we have none.” And then my saviors the National Archives—they had various FOIA requests with them and they were bouncing these FOIA requests around to various places.

So, this became my favorite thing when it was produced two years later. It produced a memo that the month before the DIA was denying they had these records—it was a memo of a very high-level ongoing discussion between the DIA and other agencies about what to do with the records of the Panama records. [laughter] So it was like a perfect situation of, like, they bold-faced were lying to me when the very senior people were talking about this very issue at that exact same time. So that was satisfying although, ultimately, I got no mea culpa for the DIA or anything else from them, but I have to say that.

Dan Moczula: Thank you.

Reena Novotnak: I have a follow up question. So, are you worried that—to avoid making government records—agency heads will say, “oh let’s just have this conversation over lunch where you know, we’re not creating a record, you know what I mean?”

Professor Cox: Yeah, that’s definitely a problem and it’s an interesting thing where—it goes back to that distinction between the private and public—where private companies, that sort of thing: “there’s something sensitive here, let’s not put this in writing.” Agencies do that, but under the law and on the federal side and the state side there is actually a duty to document. And the federal one says, you know, “agencies shall create and maintain records sufficient not only to protect the rights of government but to protect the rights of people affected by government activities.”³⁶ And that gets ignored sometimes, and it’s something that has been interpreted by the National Archives in a broad way. They did a deep dive into CIA records since the late ‘90s and there were situations where they were saying, “you make these types of decisions, but we don’t see any records about them,” and they were like, “well, we normally do that over our secured line or in person,” and they were like, “no, no if you you’re going to have a substantive conversation and make a decision on behalf of the agency—if it’s done over the phone, if it’s done in person—you need to create a memo about that conversation and the decision that was made.”³⁷ And they enforced that.

And I think it, again, goes back to the importance of the FOIA exemptions. That’s why the exemptions are there—so that the agency should feel obligated to create and document what they are doing with the understanding that if the information falls into one of those categories, if it is legitimately sensitive because it is one of those categories, then it would be withheld.³⁸ But the idea is the agency employees are taking that upon themselves to create an extra level of problems by saying, “we’re not creating a record for that.” That’s really something that needs to be addressed, and people need to be told that that’s not the right answer. I’ve worked in the federal government, I’m currently an employee of the state of New York, and from my perspective, if I was ever told “don’t write this down,” I would go back to my desk and create a document documenting all the stuff that they told me not to write down and documenting who told me to not write it down. But that’s me. [Laughter]

Reena Novotnak: And then I have one more follow up question about context. So, it sounds like one of the maybe problems of open government is this lack of context that people are creating. How can that be ameliorated? Whose job is it to create context, and how can we create context for the documents that we are getting which are so vast?

Professor Cox: Yeah that’s tricky. I mean, I think there’s a bigger issue here about how as we as a society consume information and where we are getting it from and who we could or could not trust to contextualize things for us. And some of that is about personal decisions that we make. I think that the context specifically in—and this is a bit more limited—in the context of FOIA, one part of it is to keep at it. I mentioned the National Security Archive before and their way of approaching FOIA is I think how we all should approach FOIA when it’s about something that we’re trying to develop facts around: they just keep at it. So, they make an initial request and they get some documents and they recognize that some of these documents—that this isn’t the whole picture. Those documents may reference other documents, or those documents reference an office, and they submit another FOIA request and they get additional material, and then they seek cross records, and they just keep building so they’re creating the record. Now, obviously if we were approaching the issues that we are FOIAing in that way and we had the time to do that—I think it does create a much fuller picture. And when you look at something—you know, they have these briefing books on the National Security Archives website about various topics they really developed the record on, and you do get that sort of nuance of “the government had this issue,” and they really look at all of these issues and then, “these were some of the decisions that were made.”³⁹ And it gives a much fuller picture then what would have been the case if they relied on the initial documents that they got. So, one of the things that we’ve learned over time is that it’s very hard to get rid of every single copy of a document. And so even if there is a problem of an agency sanitizing things, you find some sort of reference to another document and another thing, and then they thought they didn’t have any more copies of this, but then it’s in a different office. So, I think if keeping at it can help add some context, but the larger issue is beyond the scope of my knowledge [laughter] in terms of how we can really—it’s just in the way we consume information.

[Music]

Reena: You’ve been listening to part one of two of the first episode of Footnote Forum. I’m Reena Novotnak, editor, host, and theme music composer. Thanks to staffers Dan Moczula, Rachel Goldman, Cesar Ruiz, Maya Kouassi, Ariel Federow, Shezza Abboushi Dallal, and Andrew Miller. Thanks also to our Editor in Chief, Audrey Juarez, and the rest of the managing editorial board. Special thanks to Professor Cox for sharing his expertise with us. Catch us next time for an interview with CUNY Law Students Joanna Lopez and Jacklyn Mann on their work at the immigration detention center in Dilley, Texas, and the role that transparency and open government has to play in promoting safety and accountability in the immigration context. Until next time, I’ll leave you with a quote from a famous Supreme Court decision, this from Houchins v. KQED, Inc. In Houchins, the court held that members of the press have no special first amendment right to access prison facilities, even to investigate abuses.⁴⁰ In his dissent, Justice Stevens wrote: “Without some protection for the acquisition of information about the operation of public institutions such as prisons by the public at large, the process of self-governance contemplated by the Framers would be stripped of its substance.”⁴¹

[This transcript has been lightly edited for readability and clarity]

Reena Novotnak: This is Footnote Forum, a production of the Law Review at City University of New York School of Law. I’m Reena Novotnak, your editor and host, and I’m joined by my staffers:

Dan Moczula, Rachel Goldman, Cesar Ruiz, Maya Kouassi, Ariel Federow, Shezza Abboushi Dallal, and Andrew Miller.

This year, on the podcast, we will be focusing on the Freedom of Information Act and the Freedom of Information Law, or FOIA and FOIL. Right now, you’re listening to part one of two of the first episode, with our special guest–

Professor Cox: Hi, I’m Douglas Cox, and I’m a law librarian here at CUNY Law.

Reena Novotnak: Professor Cox’s research focuses on the intersection between national security and information policy, and we’ve invited him on the show to answer some of our most pressing questions about the nature of FOIL and FOIA. Starting with the most basic—what is FOIA, and what is FOIL?

Professor Cox: So, FOIA is the Freedom of Information Act, and on the New York side they call it the Freedom of Information Law. And generally, it’s talked about as FOI, “Freedom of Information,” and then some places call it an act, some states call it a law, and so those are used somewhat interchangeably, depending on the circumstance.

Cesar Ruiz: As you know, we’re a public-interest driven school, so one of the things we were thinking about—how can it be used for advocacy, and should it be used for advocacy?

Professor Cox: FOIA and FOIL are great tools for advocacy at a policy level. One of the best examples of this is the way that the ACLU uses FOIA, where they will submit a FOIA request about an issue where they believe there should be more transparency, and they will use the submission of that FOIA request as a vehicle for, sort of, bringing it up.¹ They’ll issue a press release; their FOIA requests are not bare-bones. They are lengthy, and they sort of go through the background of the issue and why it’s important—whether the issue’s torture, or drone killings, or privacy—and they’ll sort of walk through why they need this information and why the public record is insufficient currently, and they’ll put that FOIA request out. And then, if and when they get a response, that is another opportunity for them to put out a press release and go through the material that is there. They then frequently are filing a lawsuit, which then provides another opportunity to bring this issue up again. And there’s likely to be a news article about it. And then, as that litigation proceeds, and as they get more records from the government agencies, each of those things is sort of an opportunity to bring those things up again. And there’s another article here, another press release here, and it really can bring it to the fore. So, it both has the effect of getting more information about it, to sort of enhance their advocacy efforts, but also the FOIA process itself is a vehicle for pushing the issue.

I think one of the things to think about with FOIA and FOIL to avoid is getting your expectations too high sometimes. I think that time limitations—some of the obstacles to ultimately getting records can also create a problem in terms of how useful it will be, depending on how time-sensitive the information you need is.

Rachel Goldman: So how do you request a FOIL or FOIA and what are the necessary elements of a request? Professor Cox: Yeah, so it’s pretty straightforward. So, both under FOIA and FOIL, the basic idea is a person requests a record from a government agency. The government agency is supposed to respond within a certain time period. On the federal side, it’s twenty working days.² On the New York FOIL side, it’s five business days.³ And they are supposed to provide a copy of those agency records unless those records are subject to one of the exemptions under the law. So, it is a nice thing that FOIA and FOIL at its base is pretty straightforward, and, for purposes of a FOIA request, it doesn’t have to be very complicated. It essentially says you need to be clear that this is a FOIA request, “this is a FOIA request,” or “this is a request under FOIL.” You need to reasonably describe the records that you want. Now, under the law, you should also be clear about what format you want them. It used to be that everything was in hard copy, but now you can request things in PDF, or in electronic, or on a CD. And that’s the primary things that you need to put in this request. You can put a perfectly valid and useful and good FOIA request; it could be one page long. There could be reasons why you want to extend it out—as how I mentioned, the ACLU example of sort of using it as an advocacy document. Also, it’s always a good idea to try to be as helpful as you can on the assumption that whoever’s receiving it is actually going to try to find those records. So, if you have references to a specific document, how did you know about that? Was it referenced in some other document? Was it referenced in a news article? Sort of identifying the information that you know about what you’re asking for can help them identify the relevant places to look. But that’s the great thing about FOIA, is it is something that is designed so that a simple request can be valid and can be acted on.

Early on, when you’re doing a FOIA request, you want to do your research. And some of it is tricky where—obviously people that have been in government, who are familiar with sort of how different offices function and what types of records are kept where can be more effective FOIA requesters because they can be a little bit more direct about what they’re asking for. And so, I think some of it is—in terms of making a FOIA request—trying to research the agencies that might contain records. I mean, think about all the different agencies that might have the specific records that you’re looking at, and are there communications between different agencies? If this agency is communicating with another agency, I would request from both agencies, because sometimes one will look in the right place and one won’t, and you’ll get one part of the conversation, one side, so it’ll help you along.

Rachel Goldman:  Is there anything that you should avoid when you’re making a request?

Professor Cox:  So, I think it sort of depends on what you’re doing. I would say one thing is—that I’ve certainly felt over time—is just, sometimes you can overthink it. “This request is too simple, and let me work through this, and let me try to define exactly what I mean by ‘record’ or ‘document,’ or something along these lines.” And sometimes you’ll try to exclude things, and in doing that you can sort of turn yourself in a circle and make it more complicated than it needs to be. And sometimes down the line—and sometimes the “down the line” is two years later or longer—you realize, “oh, actually, as I phrased this, I kind of excluded something that I actually wanted to get.”

Rachel Goldman: What is a mistake that you’ve made in making one of these requests, and what would you do differently?

Professor Cox: Yeah, so, definitely a mistake that I have made is the one that I described of trying to get a little too cute [laughter] with how I phrased something. And, to the point that then later I realized, “actually, that could be read in a way that excludes some records that I want.” And I did that in one situation where I did litigate it, and later on when they came back, they were like, “oh, well this isn’t covered by this.” And I was like, “you know, that’s obviously not how I intended the request,” but I essentially had to put in another request later to sort of cover over the specific thing that I wanted that I had, through my own error, excluded from the request. So—uh, yeah, don’t get too cute. [Laughter]

Cesar Ruiz: We were curious how accessible FOIL/FOIA is? Is it an expensive process? Do they offer a way to cover the cost if you can’t afford it? How does this affect people who have to request their own documents, like private citizens? Professor Cox: Yeah, so there is a fee structure under FOIA and FOIL, which is something to be cognizant of.⁴ Now on the federal FOIA side, this has been ameliorated somewhat by recent amendments to the FOIA where, under a lot of circumstances, if the agency fails to comply with the twenty working day thing—which, it almost always happens, they almost never get something before twenty working days—in a lot of circumstances, the agency won’t be able to charge you fees.⁵ It’s also a thing that you can sometimes put in your request some information about who you are, for purposes of them properly assessing what fee category.⁶ There are different categories: everything from an educational requestor, which I think law students should assert, which allows that there wouldn’t be any search fees, and that you would get a first hundred pages free.⁷ Some agencies try to restrict that to things that are sort of more official research from an educational institution, but I would always challenge that. There are media requestors, which is another category.⁸ The category you do not want to be in is the commercial category, where they are charging search fees, they’re charging for each page.⁹ Although at the same time, it is also important that they have something like that because the largest group of requestors are in fact companies and organizations trying to get financial information.

But, because of some of those changes in the FOIA, the fees are something that has become a little bit less of a concern on the federal side. On the state side, depending upon the state, it can vary a lot and there are some states that use these fees as ways to deter people from getting records. So, you’ll see these on Twitter, you’ll see these on other places where somebody has a letter from a state agency somewhere saying, “oh, yes, we will make a search and find these records for you, but we need $19,000 up front because that’s what we estimate is going to be the search fees and the copying fees.” Some of that can be ameliorated, depending on what the different categories are for that state. In New York, there can also be twenty-five cents a page.¹⁰ Some of that can be avoided by requesting things in electronic form, which might be cheaper if there’s a lot of documents involved. But it is something to keep in mind, because it is something that is sometimes used. But I will also say that I’ve been making FOIA requests for more than a decade now. I have never paid a penny. Even in situations where, potentially, they could have charged something, I’ve not gotten a bill, which is good. You know, if it does seem like it’s going to be a lot of documents, I do always request, you know, “could I have this on a CD?” Which, you know, some places will charge for the CD itself, but it’s a lot less than—you could have a thousand pages on there, versus getting a thousand page-by-page. Also, being here, I always put myself in the educational requestor category, which has worked. There has been, occasionally, an agency that’s questioned that, and then I go back and say, “well, I am in this category, and if we end up litigating this, I think the court’s going to agree with me.” But it’s become much better with the new changes in the federal FOIA law.

There a lot of things online that are very useful. So, you know there is the law itself in the code, and as law students we look at the annotated code—5 U.S.C. § 552 is federal FOIA and we can look at that. There are also a lot of secondary sources. There is a DOJ FOIA guide;¹¹ there is a guide from EPIC¹² about FOIA more from a requester’s standpoint that has a lot of material;¹³ and then there is—for non-law students, non-lawyers—there are a lot of websites that have very useful materials about submitting FOIA requests. The agencies themselves, all federal agencies, should have a FOIA page, which should have some basic information and like, where do you send your request to, and what does it need to include, and sometimes they have online templates where you just put in your information and what you want, and you click the button, and your request goes in.¹⁴ And there are also organizations that do FOIA a lot, that have pages that are sort of giving basic information for a non-technical audience.

So, the National Security Archive, which is at George Washington University, one of the best FOIA requester organizations anywhere, they have essentially the largest collection of government documents outside the government.¹⁵ They have a lot of material on their website about effective FOIA requests and breaking it down and like this is what we’ve learned and the way that we’ve done it, and here’s what we would suggest.

A lot of news organizations representing journalists have pages on, “here are some suggestions and tips for FOIA requests, and here is a template of what we do with this.”¹⁶

Also there is a growing group of sort of crowd-sourcing places for FOIA. MuckRock is one of them, that people can make requests through MuckRock, but also I find it a very useful thing for the records that they get.¹⁷ The requests that are made through MuckRock and then the documents they get back are all posted online so you can go on there and say “who has requested a FOIL request from NYPD, and what were some of those requests, and what were the actual responses they got back? Did they make a request similar to one that I’ve made? Did they actually get something or was it denied on a certain basis? What places have been sort of more responsive and could I look at the way that that request was done and where they were asking for, and sort of follow that as a guide?”

There is another place called Government Attic posting FOIA responses.¹⁸ There is another place called DocumentCloud, which is a lot of journalists posting sort of primary documents, a lot of them obtained via FOIA.¹⁹ And so, the sort of first stop—you always want to look to see whether you need to make a FOIA request. Are the records you want already available somehow through one of these mechanisms? But also using those to educate yourself about the agencies and their structure. Sort of, make the most effective FOIA requests that you can.

Agencies have been trying to—in theory—make it easier for people. There is a FOIA portal, where you can go in and make a FOIA request and then it can be submitted to any of a number of agencies.²⁰ I think people should be aware of that. Although, in the FOIA requester community some of those things have not been what they have been promised and sometimes you submit something and it just, like, disappears into the ether. Or, sometimes you haven’t checked it for two weeks and then it says “oh, your account is closed and we’re kicking you off,” this sort of thing. So, it is like any sort of government technology. It’s not what it was put out to be. Those are some tools that are available in an attempt to make it a more user-friendly process for non-lawyers, and people should just submit a request and try it.

Cesar Ruiz: One of the questions that I had was who traditionally opposes FOIL/FOIA requests? Which agencies have given the most resistance? If you have any examples that would definitely be helpful.

Professor Cox: There is a FOIA office at all agencies²¹ and there is a FOIL officer in New York.²² And it’s interesting because some agencies they have a very big office, sometimes it’s just a guy, or a woman, and they are the ones that make an initial determination. They’ll reach out to parts of their organization to try to find these things. Sometimes they have a database of things they are searching through to try to find responsive documents, and then they will make an initial determination about “well, we didn’t find anything,” or “we found something and we can give you some of these documents but not all of them,” or “I can give you this document but I need to redact these certain portions of it.” And in a lot of agencies they have people that are administering that, then they have a sort of a FOIA officer; it’s usually a lawyer that is above them that—when there’s hard questions and things that come up—they’ll deal with that. And it completely runs the gambit. I mean, there are agencies that are notorious for being bad about giving you material. Like the CIA; they’re pros at it. You never feel like you’re accidentally getting stuff from them. They’re going to find a way; if there is a way around it, they have thought it through.

There are other agencies that you might expect to be in that way and some of them are not. Like, among the FOIA requester community, the National Security Agency, for example, has a better reputation, not because they necessarily are giving more information, but they are more responsive, and they are very clear about certain information they are withholding. And so, there is just an appreciation that they are being more direct about it. And then I have seen the biggest discrepancies when you have smaller entities—smaller agencies or sub-entities. The most common entity that I have FOIAed that will never respond to me at all have been situations where it’s like, an individual military unit that might have information about something. Sometimes those just go into their inbox and I never hear from it ever again.

But then on the other side of that, the best FOIA response I have ever received was one of those situations where—it goes back to some of these captured documents—there was an individual unit. I sent a FOIA request to it and the next week all of the sudden my phone rings and it’s a guy who’s there, who is a civilian working there, who has like three other jobs but also wears FOIA officer as one of his hats, and he did all of the things that they say a FOIA should do. He called me, he said “hello,” he was like “I got your FOIA request. I wanted to make sure that I understood it.” And he sort of walked through exactly I was looking for. The CIA people will sue you just to get an estimate on when they are going to get back to you—which is required. He  gave me a very good estimate and he was like, “I think it is going to take me a couple of weeks to look through some of the things if I have something.” And then he called back identifying what he had found. He processed it and it was a lot of material.  He processed it and everything I got from him—there were minimal redaction and the redactions that he did put in it were exactly the types of things that you’re supposed to redact. It was a perfect experience through FOIA through a guy that is not necessarily a professional in FOIA. That was one of the few FOIA where I didn’t even appeal it, and it was how it should work. I think that guy should be cloned and put in every FOIA office in the government.

[Music]

Professor Cox: I had been in the army, and I had a security clearance background investigation and I was just curious about, like, what did they do for all of that? And so, I submitted a combination essentially of a FOIA and Privacy Act²³ request and it went off into the ether. I didn’t know if anything was ever going to come back and then eventually, all of a sudden, a stack of papers arrived that had all of the information about where they had gone and what records they had checked and who they talked to and I just thought it was an interesting thing.

And then, when I started in in law school, I was interested in information and the transparency issues also. When I started doing research, I started to do some FOIA requests and that was related to research about records captured by the U.S. government in foreign conflicts.²⁴ It is an interesting issue about foreign records, and what is their status under U.S. law. They have ongoing human rights and historical significance, and so one of the issues about that is the fact that the U.S. has taken records like that and then you never hear from them again. And so, some of it was just finding that information about where are these groups of records and that’s when I started using FOIA more regularly at various different agencies to try to locate where certain things were.

Ariel Federow: Did you find what you were looking for?

Professor Cox: In many cases yes. So, there were several situations where ultimately, I would get records that would be people referencing, “oh, yeah, those records are stored here, or those records are stored here,” and then I could follow up with additional FOIA requests to those locations. By the end I had a giant stack of records tracking where are all of these documents had gone to. And one of the benefits of this—and this is another thing about FOIA and FOIL—you will learn that the agencies vary greatly on how responsive they are and also how broad they are interpreting your request and how broadly they’re releasing things.

So, by comparison, for example, I made a request to the Defense Intelligence Agency—some of those are still outstanding after six years. But then another agency that was involved in some of this early research of mine is the National Archives itself, and it would not surprise you that the National Archives takes FOIA seriously both in terms of being very responsive to requests even if there’s going to be delays, but also individual employees within these agencies that can also make a difference. So, sometimes the FOIA office is saying “oh, hey so-and-so, we think that you might have worked on some of this, do you have records?” And sometimes that doesn’t yield anything. Some of the largest collections of records I got were when that happened within the National Archives, and then you have an archivist who’s like, “oh yes, I was on this issue.” And what I am getting is not only memos, but I am getting emails, I am getting handwritten notes from meetings with things underlined. And so, it just really allowed me to get the granular details to sort of fill out the story of these different groups of records.

Maya Kouassi: It’s so interesting that you get an array of information, even down to handwritten notes. So, just in the amount of detail that you can get from a FOIA request, with that in mind, why do you think FOIA requests are so important?

Professor Cox: I think that’s part of it. Especially with some of that handwritten—some of it almost becomes a little bit ephemeral. I think FOIA has an important role in getting some of that stuff a little bit sooner than it would in the long historical context. So, there is this tension sometimes between long-term, programmatic disclosure of government information through the historical process and through historical declassification,²⁵ where at the end of, you know, twenty or 30 years sometimes, documents are made available to the National Archives, but then part of the question is, “what is in that box when you finally open it?” And during that time there have been things—some things are kept, some things are not kept—and I think FOIA is a way to sort of, on an ad hoc basis, reach in and try to grab some of that stuff while it’s still there. So, some of those handwritten notes may not survive the long historical declassification process or the transfer to the National Archives, but we can grab it now. And so, I think that’s one thing where there can be these focused requests on specific issues that are important now and some of it is also about preserving those records before they would be discarded by the government down the line.

Maya Kouassi: And it’s also interesting because you talked about how information can basically—I want to say disintegrate, no longer be accessible, despite you filing your FOIA request when you file it. So, with that in mind, has there been an instance where you filed a FOIA request and it was harmful?

Professor Cox: Not sure that there was a time where it was harmful in that sense. Like, I think to the extent that you’re requesting something, you never know what you’re going to get. And I guess there could be a situation where you could get something that you didn’t expect or something that, you know, undermines your thesis if you were doing research, or undermines your theory if you were working on a specific type of case. I mean one of the tricky things is when—the first part of your question—sometimes you do get a situation where the response is, “we had this record and we no longer have it.” And I think that’s one where you’re like “ah,” you know, “when was this [discarded]?” The FBI in particular, actually is sometimes good about identifying exactly when it was discarded. And so, then you’re like, [laughter] “well, I should have—had I requested this five years ago, this document might still be there.”

Ariel Federow: Are there laws—or statutes or policies—that freeze records at the point of a FOIA or FOIL request? Professor Cox: Yes, so that’s an important point. So, FOIA, in and of itself, is not a records preservation law. That’s the federal records law—the Federal Records Act—which governs how long agencies should keep records.²⁶ And that’s where they make determinations, along with the National Archives, about “these are the type of records that are important that should be kept forever.”²⁷ Some should be kept forever, some should be kept for thirty years, some for twenty years, sometimes they’re transitory records that might be kept for 180 days at the low end. But, when somebody submits a FOIA request, that is supposed to freeze records that are responsive to that request. Now, there can be situations where, well, “this didn’t get communicated— this search that they did to find these records didn’t identify that those would have been responsive.” And where there are situations, which have happened, where an agency destroys records responsive to a FOIA request after a request has been made, that is one of those situations where courts have been willing to step in and be—“you know, we’re almost going to presume bad faith here,” when you have a situation where something has been requested and then was intentionally destroyed. And there can be sanctions for that, and additional measures.

Ariel Federow: How does that presumption play out if, say, you’re working on a case for which you need the FOIA or FOILed info, it disappears, the court presumes bad faith. What happens then?

Professor Cox: In the context of a specific case, that’s where FOIA might intersect with the litigation and the civil procedure. And so there can be these situations where you can have a civil litigation, where there can be discovery that’s being involved, where they can also—sometimes people will supplement discovery that’s taking place in a case also with FOIA requests if the government is involved in the litigation. And in those situations where the government or a litigant has destroyed records relevant to ongoing litigation, then those are situations where one of the sanctions can be an adverse inference. Later, there can be a thing where the judge will basically instruct the jury to say, “the agency had these records; they intentionally destroyed them; they should have preserved them. And therefore, the jury should presume that that contained incriminating information that would be positive or support the charge made by the plaintiff.”

Reena Novotnak: You were talking about instances where agencies have destroyed records in order to avoid having them FOIAed or in response to a FOIA request. Can you think of a case in which that was egregious?

Professor Cox: Yeah so, the most egregious case of that is the ACLU’s case against DOD and CIA and others about torture materials.²⁸ And this is sort of a great illustration of—in the extreme of—the difference between “you file a FOIA request,” and “you file a lawsuit.” So they filed a FOIA request to all these agencies saying, we want all of your records having to do with the mistreatment of detainees, and the DOD responded with 15 documents and said “that’s all we have!” [Laughter]

Maya Kouassi: “Sorry guys!”

Professor Cox: So, they filed a suit, Southern District of New York, before Judge Hellerstein. It’s one of perhaps the most successful FOIA lawsuits ever. It produced mountains of records about the U.S.’s torture program that the ACLU has now up on their webpage, and you can go through all this. And it’s really filled out that history and has been indispensable to our understanding of that program—that part of our history. But in the context of that case, they requested records from the CIA, and among those would have been the Torture Tapes—the video tapes of the torture of detainees in U.S. custody. There was even an order from the judge saying, “you need to look at anything the CIA’s Office of Inspector General has had access to,”²⁹ and they had access to those video tapes and reviewed them and then the CIA destroyed them during the pendency of that case. When that became publicly known, the ACLU filed a motion for contempt³⁰ and as a result of that, the Judge required a ton of additional remedial measures to fill in the gaps of time to figure out what happened, why they were destroyed.³¹ But also filling in as much information—and they got more records than they would have got under the normal FOIA—to try to essentially replicate some of the information that would have been in those tapes. And then the Judge stopped just short of holding them in contempt on the basis that we as a public had gotten more information about it as a result, in order to remediate that problem. But it was an extreme case and the judge was apoplectic [laughter] about that. There was this great hearing after that. I sat in the seats in the back, watching Judge Hellerstein, you know, rain down fire [laughter] on the DOJ, the CIA’s lawyer about what happened here.

Maya Kouassi: You talked about records sometimes being destroyed as one of the barriers that you face in filing a FOIA request. What other barriers have you faced in trying to solicit records and also trying to get information from a particular person?

Professor Cox: Yeah, one of the worst problems is the ad hoc nature of it and how disjointed things can be within a government. So, sometimes there’s tricky questions about, like, “which agency should I be FOIAing? Because I’m not exactly sure who would have these records,” in which case you often end up requesting it from various different places. And then from each of those places, sometimes there will be entities and agencies or sub-entities that will give you the back of the hand, being like, “well, we don’t have any of these records, you should FOIA this from somebody else.” And then you have these internal things where sometimes they’ll find some records but then they’ll only have portions of them and then they’ll say, “some of these might be somewhere else.” And so there is the initial delay of waiting for records to begin with, but then sometimes you’ll wait for a long time—sometimes years, if you’re not going to file litigation—and at the end of the day when they finally get around to looking for your records they come back and are like, “oh, well, we couldn’t find anything” or “we think those are probably somewhere else, but we don’t seem to have them,” where you get the sense that, you know, not a lot of effort was put into that.

And so, then you’re always driving blind in these situations as well, because there’s the asymmetry of information. They have all the information. Also when they’re giving you something and saying “this is redacted” or “we’re withholding this” on a certain basis, you basically have only their assertion that this is classified, or that there is something in here that is attorney-client privileged, or there is something in here that is personal information that we can’t release. And you’re sort of left with, “I don’t know anything about the document, in order to counteract that argument.” So, it can be very frustrating in that way. But I think the main obstacle—the main frustration—is the passage of time, that you have to sort of play a long game of like, “I may not get these records for some time and what I may end up getting could be very limited.”

Maya Kouassi: I’m also interested in hearing your take on how to streamline that process. Not even just in the sense of speeding it up, because agencies will take as long as they want to take. But streamlining in the sense of you, you know, filing a request with one agency but they say to go to this agency, and that agency. It could very easily have you bouncing around. Do you have any suggestions on how to avoid that from happening?

Professor Cox: Yeah, I think it’s tricky because I think on the one hand—I would put it as a strategy of going to multiple agencies. It can create frustrations and it can create an obstacle because they’ll sometimes pass it around, but I would also say that, as a positive strategy, that sometimes you have good things that happen when multiple agencies are looking at it. And you always assume that they are working together and coordinating, but they’re sometimes not, and sometimes to the benefit of the requester. So I’ve also had good situations where one agency is like, “oh, these don’t exist” or “we don’t have these,” and then another agency has them and has the back and forth with the other agency that said they didn’t have anything which then allows you to go back and submit another FOIA request. And sometimes the bouncing around can unearth additional records that can be useful. And again, it’s so dependent on the agency.

So, when there are referrals coming from the agencies themselves, those often also get a little bit more respect, I think. So in one of the requests that I made—it was for the National Archives, and situations where the National Archives was identifying records that another agency had equities in and things—they would directly go out to them and say, “hey, there’s these records, you might want to look at these before they’re released.” But they were following up on that and making sure that I was going to get the full run of records that I was entitled to. And streamlining—the other part of it is, from the beginning, I guess—to the extent that you have very specific things that you’re looking for, making those requests narrower. Because the easiest thing is to make a very broad request, but if what you’re looking for is really something more specific and narrower, that can help a little bit. And doing that research to find—you know, if you can identify—“oh, it seems like it’s this office that’s handling that,” that can help streamline that process in terms of getting information that might be useful to them to locate the relevant record.

The basic structure is: you make your request, you get a substantive response, and then if they come back with a substantive response and say “we don’t have records,” or “we do have records but we can’t give them to you because they fall under one of the exemptions,” you then have an appeal right. You always want to appeal. This is thing that all the FOIA requestors say: always appeal. Because one, it keeps it going. Two, it will mean that it goes to a different set of eyes. So, even in a situation where there’s, you know, “here, we have five documents that are responses to a request, but we think they are fully exempt,” you appeal. And again—and “flying blind” in a sense—writing those appeals is always tricky because you’ll have the grounds: “this contains attorney-client privilege,” or “this contains classified information,” you don’t know enough information about it. But you can make some general arguments. You can identify and you can say “I think you’re reading these too broadly,” and you’re basically forcing them to take a second look. And occasionally, the second reviewer at the appeal level will look at it and say, “well, you know, I think we could actually release a little bit of this, maybe there’s some reasonably segregable information, which is the standard in this document. We might need to redact the top of it, but I think we could release the bottom of it.” So, you always want to appeal.

Then, you do definitely have recourse, which is one of the great benefits of FOIA, you instantly have standing to file a FOIA lawsuit.³² And that can happen in a couple of different places. So, traditionally, the idea is you submit your request, you get a substantive response, you appeal, you get the response to your appeal, and then you’ve exhausted your administrative remedies, and then you can file a lawsuit.³³ But, there’s also a quicker way to do that if you’re prepared to litigate, which is: once the twenty working days has expired, and they have not given you a substantive response—because normally what happens in the twenty, if you’re getting anything within twenty working days, it’s simply an acknowledgment letter that we have received your request. And it will put you in line. Once you hit that twenty working days, you can file suit immediately on the basis that you have constructively exhausted your administrative remedies.³⁴ And you can get into court right away. If you wait and you get the appeal, then you do have to file an administrative appeal, if you haven’t yet filed suit. But then the limit on that is another twenty working days. So, if you appealed, and then twenty working days and they haven’t adjudicated your appeal, that’s another opportunity that you could get into court. And the other advantage about the availability of litigation in FOIA is you have instant standing and also you have some ability to sort of pick your forum, you can file suit on any FOIA cases in the District of Columbia, and you can also alternatively file a FOIA lawsuit in your place of residence, whatever district you’re living in, or even principal place of business.³⁵ That’s another way you have a little bit of flexibility.

Ariel Federow: When it goes to the courts, do you think people end up getting more back, somehow, than they might if the agency just gave them on their own discretion?

Professor Cox: Yeah, so it’s definitely the case. In theory, filing a lawsuit is not supposed to change your place in line, and it’s not supposed to change how much they’re willing to give, but as a practical matter, it is unquestionable that it does. And when you file that lawsuit, really the effect of having a judge who is responsible for that case, and is checking in on progress, means that things happen. So, in that is almost the most effective part of the whole case. So, I filed a case a couple years ago after I filed my complaint, they filed their answer, the judge said, “let’s have a conference.” Got together, and everybody introduced themselves, and then the judge basically leaned in and is like “so when are you getting Professor Cox his documents.” [Laughter] And like, that, in and of itself—“Okay, well, yes your honor, we’re working on it, and we’ll…” —and he’s like “ok, well, ninety days I expect there to be some substantial progress.”

Maya Kouassi: Well, there you go.

Professor Cox: And then, over time they release things. Also, sometimes there will be situations where they will release some documents, and then you file suit, and then down the line, “it just so happens, oh, we looked at this again and yeah, there’s some additional documents.” Because when they’re forced to do it in court, they have to get to the point where they’re going to be ready to file their declarations in the context of a summary judgement motion, that is saying “yes, we have done a fully reasonable search, we have released all non-exempt information in all of these records.” And so, as they’re going through that process, they’re having to make determinations about what are we really willing to attest to in court, if we’re going to get challenged on it, what are we ready to defend.

Maya Kouassi: And I know you were talking a lot about a few different barriers when faced with filing a FOIA request, so could you talk a little bit about who’s covered, who’s exempt from a FOIL or FOIA request?

Professor Cox: Yeah, so, that’s an important distinction. So under FOIA—federal FOIA—it’s agency documents, and generally under FOIL as well, agency documents, so it’s applying to executive agencies. It doesn’t apply to the President, it doesn’t apply to Congress, it doesn’t apply to the judiciary. It’s just agencies. Now there are these tricky things on the edges of it, which is certain things within the Executive Office of the President act more like an agency, and some of those can be subject to FOIA and some of them are not. On the New York side, New York FOIL, there is also a provision that allows some access to legislative records.³⁶ So it’s in that way a little bit broader. But the main body are agencies. And so there can be situations where, you know, if somebody is trying to request from an entity that is not subject to FOIA they could then just get a response saying, “we’re not subject to FOIA, we have no obligations here.”

The other thing that sometimes comes up in terms of exempt agencies is situations where records from an entity not subject to FOIA is in the possession of an agency that is subject to FOIA. And there you can end up with some tricky situations where— “is this copy still a congressional record,” or, “is this an agency record that just happens to contain congressional information in it?” So, there can be some very tricky issues in that area. The other part of the exemptions though, in terms of even when you’re talking about agencies, are the nine exemptions of types of information.³⁷ Which is also tricky depending on the type of things that you’re trying to get.

So yeah, if you’re working in something that involves national security then you run into (b)(1) exemption for classified information a lot.³⁸ If you’re FOIAing law enforcement agencies, then you run into (b)(7), which is for certain types of law enforcement information.³⁹ If you’re interested in legal aspects of things, then sometimes you’ll end with communications having to do with lawyers. And the federal agencies, like private parties, can assert attorney-client privilege for certain information as well.⁴⁰ And with those, that’s really where the rubber really hits the road in terms of the litigation back and forth—these determinations about “should these exemptions really apply in this situation or shouldn’t they.” And the one other benefit of the litigation availability, and how FOIA allows that, is that the review by judges of these determinations is de novo, so there isn’t this deference. So, the judge isn’t saying, “well, because this employee there said, that looked and this and said, ‘this probably applies’ and we’re going to defer to that.” The judge can look at the records themselves and say, “I don’t see why this exemption would apply to this set of documents here.” Now, getting them to actually review the documents can be tricky. Sometimes they—and especially with certain types of things—they do give a different type of deference. So in particular, classified information—judges feel often outside their area of expertise when they have a sworn declaration from an agency saying, “the release of this specific information would cause grave damage to national security.” Judges are usually not willing to necessarily second guess that type of judgment.

Maya Kouassi: How do you feel about that? The fact that there are certain people and classes of information that are just exempt from FOIA request, given the purpose of the request?

Professor Cox: Generally, as it appears in the law, they seem reasonable to me. And I think obviously there needs to be some of those exceptions and exemptions there. But, for me it’s always the trick of how it’s actually being applied. And when there is, you know—as a litigant—it is also difficult to counteract those. So still, you get a more detailed declaration from an agency, and it’s saying, well, “this contains that kind of information and therefore it would cause all these sorts of problems, and therefore this exemption applies,” and it’s hard to sort of second guess that, not having the benefit of seeing the records themselves and exactly what they’re talking about. Because sometimes they’re sort of vague about what the information is. But do I think that it’s important that we have those exemptions and in part I think it’s important those exemptions exist because that should then encourage agencies to not be chilled by the fact that documents might be produced. Because what their job is on the federal records side is to document the actions of our government and they should do that without a fear that “oh, we can’t allow this to get out.” Because the idea behind FOIL and FOIA is that this process is created so that those things will look through. And if there is personal information that would really invade an individual employee’s privacy for example, as one of the exemptions, that will be looked at in the context of the larger record and information will be redacted if it was released publicly.

Privileges are covered under (b)(5) in federal FOIA.⁴¹ And it covers a wide variety of them, including the “deliberative privilege,” that’s the internal, or between agency, deliberations. There’s the “attorney client privilege.” That occasionally gets into the “executive privilege” type thing, the “presidential communications privilege” that can sometimes be used to redact or withhold. That becomes a particularly difficult thing to combat, when those sorts of assertions are being made. They tend to be a little bit vague. Maybe something the courts will sometimes uphold—and this is a question about did they really dig into that and take a close look at whether those things apply. It’s also an important thing about the distinction between FOIA and discovery in the context of the civil litigation. So, sometimes, people will use FOIA as an additional thing in the context of litigation. And there are some distinctions between discovery in the civil litigation context and the standards under FOIA.

On the one hand, for example, you can FOIA anything. You don’t have to give a reason for it. It doesn’t have to be relevant. So, you could make a FOIA that’s a little bit broader than what you might be able to get in civil discovery. But at the same time when it comes to things like privileges—in discovery sometimes privileges can be overcome with a special showing. Like, “they’re asserting that this is privileged in some way, but there’s an additional argument here why that privilege should be overcome, and we still should have access to this document.” Whereas you don’t have that under FOIA. So, the question is “is it or is it not subject to this privilege,” there’s not a balancing of it. There is a balancing in the context of privacy under FOIA but not under the privileges.

Ariel Federow: I’ve worked in offices sometimes, you finish something, you recycle it, you delete your email, that kind of thing, how is it different if you work for the government?

Professor Cox: It’s a good question, because there is a structural difference, and this—I think this is particularly important for lawyers, and law students—is this distinction between private and public; where on the private side, and people that work at law firms and are working with private companies, the presumption is you don’t have to keep anything, you don’t need to create records—

Ariel Federow: Right.

Professor Cox: —you don’t need to keep them. And there is always this sort of thing where they talk about, “well let’s talk about records retention policy,” which is this sort of wink and nod to “let’s destroy things that we don’t need because we don’t want these coming up in the litigation.”

Ariel Federow: Right.

Professor Cox: Now on the government side, the default rule is the complete opposite, and sometimes when you have this situation of attorneys who are working in the private sector and then they’re going into government and then going back in this sort of revolving door, I think sometimes this gets a little bit confused. So on the federal side, no federal records can be destroyed absent authority or approval from the Archivist of the United States.⁴² And so how that’s done is through these retention schedules that define these groups of records and how long they’re supposed to be kept.⁴³ But the basic rule is, “I’m not supposed to be discarding anything unless it has been approved.”

There is this concept called a non-record, which is like this anti-matter, [laughter] which is, the basic idea is that there could be something that is so ephemeral that it shouldn’t even be considered a record. But the problem is that that has been used in an abusive way to say here’s something very substantive, but this isn’t really a record.

Reena Novotnak: Does that apply to emails?

Professor Cox: Yes, that had to be argued about, because there early on the government was saying, “oh, this electronic stuff, those aren’t records.” And there’s this great case, Armstrong, where this issue came up that at the end of the Reagan administration.⁴⁴ There was a bunch of records that were sort of this early form of electronic email and the government said, “well these aren’t records, we need to get rid of these, because there’s also hard copies of some of this,”—

Ariel Federow: —because people printed them out.

Professor Cox: Yeah, but then the judge got into this and it was like, “well actually, you have the hard copy, but it has things like it went to this group, and it’s only the electronic version that it explains who all those people in that group are.” So, there’s this great quote in there saying “these are not identical twins, they are at most kissing cousins,”⁴⁵ [laughter] and these are two different records that both of them have to be preserved.

Reena Novotnak: You’ve been listening to part one of two of the first episode of Footnote Forum. I’m Reena Novotnak, editor, host, and theme music composer. Thanks to staffers Dan Moczula, Rachel Goldman, Cesar Ruiz, Maya Kouassi, Ariel Federow, Shezza Abboushi Dallal, and Andrew Miller. Thanks also to our Editor in Chief, Audrey Juarez, and the rest of the managing editorial board. Special thanks to Professor Cox for sharing his expertise with us. Catch us next time for the second half, where we will discuss the history behind FOIA and the interaction between politics and open government.

Until next time, I’ll leave you with a quote from a famous Supreme Court decision, this from New York Times Company v. United States, a 1971 case regarding the publication of the infamous Pentagon Papers, classified documents which, among other things, revealed that the Johnson Administration had lied to Congress and the public about the scope of the Vietnam War.⁴⁶ Justice Black wrote in his concurrence: “The word ‘security’ is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. The guarding of military and diplomatic secrets at the expense of informed representative government provides no real security for our Republic.”⁴⁷