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Leopold: Never, ever just fire off a FOIA request. You have to do things very differently these days … Government agencies at the state and federal level are backlogged — FOIA has become a very popular, useful tool for journalists and also members of the public. And the agencies are not devoting additional resources like hiring staffers to reduce the backlog, so it's just piling up.
I advise people I speak with to approach FOIA as you would an investigative story. That means building source relationships with people in that world and getting to know how an agency functions. For example, if you're filing a request with the Department of Homeland Security, keep in mind that the Department of Homeland Security has many different components within that agency. Which is the right part of that agency where your request should go?
In addition to that, what has become standard language in my template is, I always instruct the agencies to omit news clippings and press releases. Oftentimes, when an agency will respond and say, “We found 25,000 pages” — what's happening is that they're getting emails with news clips in them or press releases or listservs. If an agency is not instructed to omit those, they're going to process everything, and that's going to take a lot of time.
Also, be sure you have a timeframe: I want these records from this date to this date. Make sure that you know which custodian or official that you're asking for records from.
How do you manage keeping FOIA request costs reasonable for your organization?
Leopold: What I do is try to explain how I intend to use these records. For example, I intend to post these records on Bloomberg.com, we have millions of readers and people will be able to access it. … These are not in my commercial interest. The agency should waive fees because I intend to share it with everyone.
Taking those extra steps to inform an agency of why this is in the public interest, how you intend to use the records to inform the public, and as a result of that, why those fees should be waived, has proven to be very successful for me. Simply saying “I'm a journalist” doesn't cut it.
You recently filed a FOIA suit seeking FBI records on the investigation into President Biden's handling of classified documents. Since lawsuits take both time and financial resources, can you discuss the benefit of suing elusive government agencies?
Leopold: I've filed more than 100 lawsuits against federal government agencies. I do that very strategically. … Whenever I file a request, I wait about a month or two and ask for an estimated date of completion. I'm not sure requesters know, but by law every federal government agency has to provide you with an estimated date of completion when they expect to produce records. That's valuable information if you're working on a story or an investigation because it will tell you when you can expect to get any documents.
So, if that date is far out — for example, I just reached out to the Department of Justice's Office of Legal Counsel for an estimated date of completion, and they said, “We'll get your records in September 2025.” To me, that's too long. So do I want to sue?
Basically, when you sue, you go into another queue. You're essentially put on top of the pile. … What I do when I'm litigating is simply trying to get the records faster as opposed to, “I didn't get what I want, and now I'm going to go to court.” It's really trying to speed up the process. It underscores … how broken FOIA is because lawsuits are seen as an avenue to expedite the release of documents.
Read on for more open records tips.
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