The Freedom of Information Act (FOIA) provides the public access to records held by public bodies.
The FOIA.gov Faq page has an excellent Q&A and videos that will cover much of what you need to know about the history of FOIA and submitting a request.
However, they don’t have a sample, so I’ll provide one here, plus a few first-hand experiences with issues that have arisen following FOIA requests.
Finding Contact Information:
This is as simple as going to the web site of the agency and typing “FOIA” into the search box.
For example, if I type “FOIA” in the search box on Fairfax County Public Schools’s (FCPS) site, the results page lists FCPS’ FOIA page at the top. This page has a generic form, where requesters can submit their FOIA requests.
Sometimes you’ll find a specific contact, such as on the Virginia Department of Education’s FOIA page, which lists Rebecca Askew as the FOIA contact. Her email address is firstname.lastname@example.org and her phone number is 804-225-2775.
If you hit a dead end attempting to obtain a specific name and address, do an online search for FOIA officers in your state. In Virgina, Virginia Freedom of Information Advisory has a list of FOIA officers in the state, which can be searched by name or by public entity. Council FOIA Council has a list of FOIA officers. FCPS’s FOIA officer is Molly Shannon. Her email address is email@example.com and her phone number is 571-253-4823.
There is no form required. If you are advised that you must use a specific form and/or follow a specific format, ask that the specific law requiring these items be cited.
Start your request with, “This is a FOIA request”.
Next up is your request.
What do you want?
The key to FOIA requests is keep it simple and keep it precise. This will help minimize the response time and the fees charged for the request response.
If I want to obtain records about Fairfax County Public Schools’ recent “distance learning” debacle, I wouldn’t ask for all documents. I’d start small and then expand my search.
I wouldn’t submit this:
This is a FOIA request. Please provide me all documentation related to FCPS’ “distance learning” launch failure.
Instead, I would submit this:
This is a FOIA request.
Please provide me all emails, text messages, voice mail messages, letters, reports, and all other files in any print and digital formats that have not already been mentioned, which are between Superintendent Scott Brabrand and former Assistant Superintendent for the Department of Information and Technology Maribeth Luftglass.
FOIA request responses tend to provide new pieces of the puzzle, on which you can then submit another request. For example, as the result of a FOIA request submitted to FCPS in 2021, I found myself being sued along with FCPS parent Debra Tisler. FCPS’s response provided unredacted information it later tried to claw back, which related to questionable spending practices, noncompliance, an Assistant United States Attorney’s investigation, information about legal expenses and lawsuits, and more. (Additional reading: “Parents and First Amendment Prevail; Judge Rules Against Fairfax County School Board“, “Update on Fairfax County School Board’s Legal Action Against Parents“, and “Fairfax County School Board’s Legal Fees for Prior Restraint Lawsuit Against Parents Now Expected to Exceed $300,000“)
Agencies have the right to make “reasonable charges” related to FOIA requests.
The Virginia Freedom of Information Act states:
“A public body may make reasonable charges not to exceed its actual cost incurred in accessing, duplicating, supplying, or searching for the requested records. No public body shall impose any extraneous, intermediary, or surplus fees or expenses to recoup the general costs associated with creating or maintaining records or transacting the general business of the public body.”
This does not mean price gouging.
For example, 11.14.18, Brandynn Reaves responded to a FOIA request, with a fee of $54.37/hour, allowing for no fee for the first 30 minutes of the search. (Update: In November 2020, FCPS stopped waiving fees for the first 30 minutes.)
In the past, FCPS had billed a lower rate, so I called Brandynn out on this high pricing. She stated:
“Due to the sensitivity and confidentiality of these records, a senior staff member who bills at a higher rate will review and redact the records to ensure that no attorney – client privileged or student information is inadvertently released.”
“I understand you are having a senior staff member work on this. Please confirm that the senior staff member’s hourly rate is $54.39 an hour. Please advise the background of this senior staff member, and his or her title, so I understand why the charge is what it is. Please also advise if there are other senior staff members who work at the same rate and/or if there is a different rate depending on the staff member.”
I contacted the Freedom of Information Advisory Council, too, which can help resolve disputes related to FOIA requests.
In one of a number of follow-up emails, I pointed out to Brandynn that another parent advised me that she had been quoted at $50/hr for a similar request.
1.9.19, Brandynn emailed me:
“Attached are the requested records. Although outside counsel conducted the review of these documents to ensure that no attorney – client privileged or student information is inadvertently released, we are charging the standard hourly rate as if the review was conducted by the FCPS FOIA office. The cost of staff time to search for the detailed invoices is $52.50 (1.5 hours @ $35.00).”
So, the hourly price went from $54.37 to $35. That makes a difference.
VDOE, on the other hand, has an even lower rate, with a policy of waiving the first $20 of all requests.
I’ve yet to be advised of why there is such a large gap between the VDOE’s and FCPS’ rates.
In Virginia’s case, the Virginia Freedom of Information Act states:
Any public body that is subject to this chapter and that is the custodian of the requested records shall promptly, but in all cases within five working days of receiving a request, provide the requested records to the requester or make one of the following responses in writing:
1. The requested records are being entirely withheld. Such response shall identify with reasonable particularity the volume and subject matter of withheld records, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records.
2. The requested records are being provided in part and are being withheld in part. Such response shall identify with reasonable particularity the subject matter of withheld portions, and cite, as to each category of withheld records, the specific Code section that authorizes the withholding of the records.
3. The requested records could not be found or do not exist. However, if the public body that received the request knows that another public body has the requested records, the response shall include contact information for the other public body.
4. It is not practically possible to provide the requested records or to determine whether they are available within the five-work-day period. Such response shall specify the conditions that make a response impossible. If the response is made within five working days, the public body shall have an additional seven work days in which to provide one of the four preceding responses.
Fairfax County Public Schools often requests more time.
The agencies from which you’re requesting information aren’t always happy that you’ve submitted requests.
The following are two images from Cameron Hibshman, who was a specialist in FCPS’ office of Special Education Procedural Support:
You might have to follow up. Give them their five days and then if you don’t receive a response, start your follow-up.
Keep is short and simple—and follow up.
As FOIA.gov stated, the freedom of information act “is a vital part of our democracy.”
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