RCFP legal director offers tips for navigating Freedom of Information Act during Investigative Reporters and Editors panel

During a Sept. 22 panel discussion at the 2020 Investigative Reporters and Editors conference, Reporters Committee Legal Director Katie Townsend shared strategies for journalists trying to navigate the federal Freedom of Information Act, and encouraged reporters to pursue administrative appeals and litigation if they confront roadblocks while trying to access public records.

Townsend was joined virtually by Nate Jones, the Washington Post’s FOIA director; Ron Nixon, global investigations editor at the Associated Press; and Cheryl W. Thompson, NPR investigative correspondent.

The Freedom of Information Act, commonly known as FOIA, allows the public to request records from federal executive branch agencies, a right that is crucial for reporters and investigative journalists. All 50 states and Washington, D.C., have their own public records laws that apply to local and state government agencies.

Townsend’s presentation outlined the basic processes for filing a FOIA request, responding to agency decisions and navigating the nine exemptions to FOIA. Townsend also highlighted the Reporters Committee’s resources for journalists, including the FOIA Wiki, Legal Hotline and Open Government Guide, which provides information about each state’s public records and open meetings laws.

Townsend acknowledged that although FOIA requires agencies to make a determination in response to a federal FOIA request within 20 business days, absent unusual circumstances, the deadline is often not met. “The statutory deadlines under FOIA are not always followed,” Townsend cautioned. “In fact, they are very rarely followed.”

However, Townsend and the other panelists emphasized that a delayed response — and even a denial — is far from the end of the process. Townsend encouraged journalists who are facing long waits or heavily redacted files to administratively appeal and turn to litigation. “One of the best strategies for using FOIA successfully is to know the basics of the law,” she told the audience.

Jones echoed Townsend’s suggestion and informed virtual attendees that a lawsuit can often result in quicker access to records when facing large, backlogged agencies. The panelists suggested that journalists use the Reporters Committee’s FOIA Wiki to cite relevant law in their original FOIA requests and in appeals arguing that agency officials failed to properly search for requested records.

Jones and Nixon also recommended that journalists take creative approaches to FOIA requests. Jones encouraged journalists to submit record requests to smaller agencies that may have shorter wait times, and Nixon highlighted that some government agencies, such as the Government Accountability Office, have regulations outside of FOIA through which journalists can access records.

Ultimately, Townsend emphasized that financial barriers to public records litigation are not always as daunting as some reporters or editors may expect. Noting that some states mandate that public records requesters can recover their legal fees if they are successful in litigation, Townsend recommended that journalists should “question that premise depending on what law you’re operating under.”

The Reporters Committee provides pro bono legal services to journalists and news organizations, and a number of state public records laws provide for mandatory fee-shifting if the plaintiffs prevail in their FOIA litigation. Under federal FOIA, agencies must provide fee waivers for journalists if the disclosure of the requested records is in the public interest.

IRE conference attendees can access a recording of this panel, as well as a downloadable tip sheet, for a year after the conference.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.