 My name is Marsha, I'm a senior staff attorney with the Electronic Frontier Foundation. For those of you who don't know what that is, it's a non-profit based in San Francisco and we work to make sure that individual rights make it into the digital age. I work on our civil liberties team, I do privacy, free speech, security related stuff and over the past several years I've done a lot of work on open government issues and that's what this talk is about today of course. We're going to talk about how to get your FBI file and other information you would like to get from the federal government. So we're going to talk primarily about two laws. The first is the Freedom of Information Act. This is a law that lets anybody ask for records from federal agencies. You can ask for whatever you want. It doesn't just have to be about you. You can ask for records about what the government's been up to in various contexts. It's pretty wide open and there are no requirements about who can ask for records. I mean even if you're not a U.S. citizen you can use this law. And there's a presumption in favor of disclosure which means that the agency has to give you what you've asked for unless there's a really good reason not to get it to you. So what are those reasons? This is basically a list of the reasons why they cannot give you something. And you know I think some of them are pretty straightforward. You know it's classified information. It would compromise a law enforcement investigation. You see I have one down there that says privileged. I know that's kind of vague. Basically what that means is that if the government were in some sort of a civil case with somebody they would be able to withhold it under some litigation privilege. So you know this might be like attorney-client privilege stuff, this kind of thing. You might notice a couple there that are a little bit odd. Like the geological, geophysical information about wells. That's very specific. It's an interesting little post 9-11 development. And there's kind of this catch-all at the very end there. Other laws say it doesn't have to be disclosed. And basically what that means is if Congress at some point makes this decision that a particular type of information shouldn't be released to the public then they can pass a law that says that that can't be released under the FOIA. So just to give you an example, the National Security Agency has a special exemption so that information about its activities and operations wouldn't have to be released under the FOIA. And there are a few dozen laws like that. If you're interested in this kind of stuff I wouldn't discourage you from asking about it just because it might be exempt. Just to give you an example, at EFF a couple of years ago we did a FOIA request seeking information about a wiretapping technology and that should fall squarely into some of these exemptions. And yet we still managed to get several thousand pages about it. So I encourage you not to be completely discouraged by the list of exemptions. You can still get some really good stuff. So the other law that we're going to talk about a little bit is called the Privacy Act. Now this is a law that specifically lets you ask for records about yourself that are maintained by some federal agency in a system of records. And the thing about this law is that it can be used only by American citizens and lawful permanent residents and if you fall outside one of those categories it doesn't mean you can't get information about yourself. You can always use the FOIA to ask for this kind of information too. Remember the FOIA is a broader law. It lets you ask for anything while the Privacy Act is specifically records about you. And you can get the same thing through the FOIA. So if you are asking for records about yourself it's pretty easy to know what you're looking for. What if you are just interested in using the FOIA to ask for stuff that's interesting to you? Like how do you know what to ask for and how to phrase your request? So the best way to do this is to pay attention I would say to the news. If there are interesting things that you're reading about that you find compelling that you want to follow up on you can learn about really interesting stuff just in news reports, press releases, government reports. If you hear about some congressional hearing or somebody talked about this FBI surveillance technology these are all really good fertile grounds for formulating FOIA requests. And how do you know where your request should go? So the government actually is required by a lot to make this fairly easy. The first step for you is to figure out which agency or agencies might have the information that you're looking for. Keep in mind that you're required to ask for stuff that already exists. They don't have to create records in response to your FOIA request. So you have to think about where the documents or other materials that you're interested in, where those things are likely to be, and then check the agency's website for information about how to submit the request. Some agencies will let you do it electronically which is super great and easy. For others you need to send in a letter or you can fax it in. But the agencies are required to have these websites that make this information very easy and available to anybody who wants to send a FOIA request or a Privacy Act request. So how do you write a request? Over the years I have come up with a few things that I think are pretty decent guidelines. First of all, describe what you want as precisely as you can because you don't want a situation where you ask for something very general and they dump thousands of pages on you and you're coming through for the little bit that's interesting to you. So what you want to do is try to be as exact as possible in describing what you want. So for example, if you're really interested in whether the FBI has conducted an investigation within a specific time period about a certain topic, I don't think you would want to request all records related to that investigation. It would be very specific time wise and subject matter wise and that should help you get the stuff that you're actually interested in. Write your request for a lay reader. A lot of people in this room are very, very technical and you are probably, if you're interested in requesting something that has technical subject matter, you're probably going to know far, far, far more about that subject than the people who are actually processing the request. So it's important to write it so that they'll understand what you're looking for. You need to help them help you. My guideline is would my mother understand this if she read it? So yeah, that's a very important thing. You want to write it so that the person who first reads the request is going to know what you're looking for and who at the agency is likely to actually have that stuff and then can route it to that person. If there are news articles that you've read that relate to this topic or kind of gave you the idea for it, go ahead and include that material. The better idea you can give about what you're interested in and what you're looking for, the better for everybody involved. And so if you can provide an agency with some stuff that's going to help them figure out exactly what you're looking for, that's nothing but good. Think about whether you can get what's called expedited processing. So this is a concept that is in the FOIA, not the Privacy Act unfortunately, but the FOIA, that basically says that if you can demonstrate a compelling need for information, then they will move your request to the head of the line and process it first. The way that they define compelling need, well, they define it a couple different ways. One type of compelling need is if you don't get the information, it's likely to result in harm or threaten the life of somebody. It's unlikely you're probably going to be able to make use of that. But there's another one that says that if you are primarily engaged in disseminating information, so like if you're a journalist and there is an urgent need to tell the public about the stuff you're asking about, then that's a good ground for expedited processing. So the concept is basically, is this a breaking news story and are you somebody who has a track record of journalistic activity and you might be breaking it? So there are some interesting questions at this point about exactly what a journalist is. I imagine a lot of you blog and if you are in a position to be able to show that you've written about a certain subject matter and you've submitted a request that's relevant to that or relevant to something else that you're interested in, if you can show the agency that you have this history of basically writing journalistic type stuff, then you might be able to get expedited processing and that's completely awesome because then you can get it processed much faster than you otherwise would be able to. So if you can, ask for reduced fees. So under the FOIA in particular, an agency is allowed to charge you fees for the time they spend searching for the records, reviewing the records and also any costs associated with duplicating the records to give them to you. You can get these things waived in certain instances. So for example, they will not charge you search or review fees if you can show that you're a member of the media or that you're affiliated with an educational or scientific institution and you're not requesting something for commercial use. So think about whether you're able to make that kind of an argument. Are you a student? Are you a fellow somewhere? Do you blog? If you can basically show that you meet some of these criteria then you may not have to pay any sorts of fees like this. You can also get duplication fees either reduced or completely taken care of. If you can show that disclosure of the information that you are looking for would be in the public interest and you're not requesting it for commercial use. So this is basically making an argument that whatever you have requested would contribute significantly to public understanding of that topic. And so if you can kind of check both of these boxes, you're in a position where you could in theory hopefully get the material you're asking for for free. So what if you're asking about yourself, again the FBI file scenario, you want to request your own FBI file. As I mentioned before you can use either law and in fact just as a Belt and Suspenders approach you might just go ahead and call it a FOIA slash privacy act request. Again it would just be FOIA if you're not a U.S. citizen or permanent legal resident but if you are, you know why not, you can use either law to do it. In order to get information about yourself from an agency you need to provide them some personal information so that they can ensure that they're giving you information about the right person, that is you as opposed to somebody with the same name or what have you. So I talked to some people who would like to request records about themselves but they feel a little antsy about providing personal information to the government. Just be aware that if this is something you want to do you probably will have to provide some information. You'll also have to certify under penalty of perjury that you're not providing false information. So I would discourage you from providing your name and then providing fake information for the rest because you just don't want them to have that information because you do have to promise that you're giving them just accurate stuff and nothing more. Again take a look at the agency website and see what their requirements are. You may actually find that it's very, very simple to submit a FOIA request or a Privacy Act request. They may have some sort of web form to do it in which case it's just the simplest thing there could possibly be and so that's definitely something that's worth doing before you go ahead and write up a request. And so once you submit your request what do you do then? Unfortunately the open government system is kind of broken and they're supposed to actually give you stuff within 20 working days if it's just a normal request but that almost never happens. If you're requesting something about yourself and you know it's a fairly simple thing to process and take care of like for example if they just don't have a file on you or they have a very small one then they may actually be able to meet the deadline but that's really unusual. So once you realize that you're not getting the stuff that you want in a timely manner you have some decisions to make about how you're going to follow up. You can just bug them. Virtually every agency FOIA website has a list of people who are required by law to make themselves available to you and talk to you about your request. So you can develop a fine working relationship with those people and bug them and ask them why they haven't processed your request in the amount of time that they're supposed to. And sometimes this really works. You know FOIA people you know they're working in a very flawed system but for the most part I find them to be really good people who take their jobs very seriously and they want to help you. They don't want to be obstructionist. Another thing you can do is you can sue. If 20 working days passes and nothing happens you are actually in a position to file suit if you want. You can sue where you live. You can sue where the records are located which is often DC. As a default you can always sue in DC. I would tend to recommend if you think about going this route that you pick the place where you live because the DC courts see lots and lots and lots of these cases and they're not all that sympathetic to FOIA requesters since DC is the government's home field. Another possibility is to contact this office. It's called the FOIA ombudsman's office. This is a fairly new thing. I don't actually have much of a sense yet how effective this is but just in the past couple years this office has been established that is intended to help mediate disputes between requesters and agencies. And so potentially you could get this sort of this middle man involved to try to push the agency along and get something processed and you won't have to spend the time to do that yourself. So keep this in mind as a possibility. Like I said, I'm not quite sure yet how effective this office is but this is something that you can avail yourselves of if you want to. Or you can just wait. The first FOIA request I ever submitted went to the INS which actually doesn't even exist anymore. And I assume this request has been rerouted somewhere but I've never gotten a response and that was like eight years ago. So that kind of thing does happen, unfortunately. And sometimes you wait for like two years and then you get a letter where they say, hey, we've had this request on file for two years and we haven't processed it yet. If you're still interested, let us know within a week and we'll process it. Otherwise we'll just close the file and you're like, what? But so that kind of thing happens. If you're just kind of curious and this is kind of for basic research purposes, there's no harm in waiting. But there are some things you can do to speed it up. So what I just spoke about is what I think is the most likely scenario. But sometimes they do respond on time and eventually they will respond at some point. And they often redact the files or just don't give it to you, right? We talked about the exemptions. So there are these reasons why they might not give you the stuff that you have asked for. So what happens if they finally process your request and they refuse to give you what you want? You have to file an appeal and this is very important. If you really don't care that much, I suppose you could just let it go. But if they respond, you cannot sue them until you file an appeal. So if you really think that you want to pursue the situation, you really want the stuff, you need to take this step. And the appeal letter is basically like this is why you're wrong. And honestly, if you don't have any reasons why they're wrong, it's totally fine to send them a letter that is a formality. Just kind of checks the box that says, look, I think you're wrong. Like one sentence, I hope you'll reconsider your decision. And once you've sent that letter, they again have 20 working days to respond. And if they don't respond or if they say, sorry, we're sticking with our initial decision, then you're perfectly situated to file suit if you want. And we talked a little bit about that before. So there are some really great resources out there that help with filing requests. The Reporters Committee for Freedom of the Press has a really wonderful set of state and federal open government guides and also request generators that will basically fill in all the language that you need if you can just give them the gist of what you're looking for. We've only talked today about federal open government laws. But each state and a lot of cities have their own open government laws. And some of them are very different, have their curious little distinctions. And so it's well worth taking a look at what the Reporters Committee has to get a sense of whether you're able to get the stuff you're looking for if you're a certain state law and if you are, how much that would cost. But yeah, that's one of the very best resources I think I've ever seen. We have a FAQ as well. It's kind of geared more towards sort of practical advice. And so if you're kind of wondering how to formulate a request or whether you might be able to ask for expedited processing, that's a great thing to look at. If you're really, really serious about pursuing FOIA requests, the Electronic Privacy Information Center where I used to work publishes a FOIA litigation manual that's about this thick. Comes out every couple years and it goes through how to write a request, the history of the laws, the various exemptions and what the courts have said about them. It's a super useful thing if you anticipate spending a whole lot of time working on open government stuff. And I mentioned before the FOIA Ombudsman's office, this is the Office of Government Information Services. And like I mentioned before, that can be a super, super useful resource. Well, I'm actually not sure if it's a super useful resource, but it is possible that they may be able to help you out if you're really in a struggle with an agency over some sort of FOIA related matter. So that's worth looking at as well if you're sort of in that position. So that's what I have. I assumed we'd probably do a lot of Q&A. I mean, I'd be very curious to hear any particular questions you have about ideas that you're thinking about for FOIA requests or Privacy Act requests or just general questions about the laws. Yes, go ahead. Okay, so your first question was about financial regulation. Is that right, you wanted to know about FOIA with respect to the recent financial downturn and- To be honest, I don't do a lot of requests in that area. So I really can't say how they have turned out or what. There is a FOIA exemption we talked about earlier that exempts from disclosure materials that are basically related to financial investigations. And that exemption actually was in there well before the financial troubles of the last couple of years. I think it's a shame that that happens to be in there because I think we could have learned a whole lot more about the causes of the downturn and what the government has found about it if that exemption weren't there. But unfortunately it is. And I wish I could tell you a little bit more about what FOIA requesters have experienced, trying to get information about that situation. But unfortunately I just don't know. Your second question was about bloggers and access to information. So bloggers and journalists, they don't get preferential treatment in terms of actual access to information. Everybody is on the same playing field in terms of what they can access. But journalists can get special treatment in terms of how quickly the request gets processed. They can ask to have the request moved to the head of the line. And if the agency thinks that that's appropriate, the agency can do that. They can also get preferential treatment for fees. They may be charged less fees than, for example, some company that submits a FOIA request to get information about a competitor and the work that the competitor is doing for the government. But in terms of access to information, journalists don't get any preferential treatment. I want to make that clear. When you submit a FOIA request, you are entitled to the information that anybody else would be. You will get whatever you ask for as long as it's not exempt. And there is nobody who can show that they have a special need for that information so that you can't have it. Or they can have it to the exclusion of you. So I just want to make that clear. I think that's a very important point. And to that end, you never have to justify a FOIA request. You can ask for anything you want and you don't have to explain why you want it or why you should get it. You also mentioned the practical realities of open government laws. This is absolutely true. I mean, I mentioned before that the system is terribly broken. The government has amended the law several times to speed up the processing of these requests to try to penalize agencies that don't comply. The fact of the matter is, when you submit a FOIA request, you have to be really diligent if you want it processed quickly. You have to take steps to make sure that it gets done. You have to take steps to push to have it answered in any sort of a timely manner. And sometimes it works, sometimes it doesn't. This is why I wanted to tell you about the ombudsman and the possibility of suing. I am an attorney and I have found that often we get the best responses when we file suit because at that point you drag a judge into the whole thing. And an agency has to justify to the judge why they're being so slow. And to simply say, look, we've got a lot of stuff to do, sorry. That just doesn't work with a judge. And the judge has the power to say, you will process this and you'll do it in a week. So I think that the FOIA process works the best when you've got requesters who are very aggressive and do whatever they can to push the system forward because you can't expect that you're going to get the stuff that you want in the 20 working days you're supposed to get it. And this is particularly true with certain agencies. I'll tell you the FBI has a terrible backlog. There are requests that sit there for years. But if you're really good about pushing your cause, I think you can get it done faster. Yes. It totally depends on the amount of stuff. If there are like 50 pages that are responsive to the request, they probably won't charge you for it at all. If it's like 10,000 pages, they may charge you thousands of dollars. I will say that you will have the opportunity, if they charge you a lot of money, you have the opportunity to appeal and basically explain why it should be less or why there shouldn't be anything. And the other thing is one thing you can do is in your request, you can say, I'm willing to pay X amount of dollars in fees, whatever, $20. If it's going to be more than that, let me know. And then if they get back to you and say, hey, look, we're thinking this is going to be like 2,000 pages. We're thinking it's going to be maybe this amount of money, then you can maybe talk to them about sort of narrowing the scope of the request or sort of negotiating some sort of a solution to make it so that you don't have to pay that amount of money. Yes, behind you, yeah. That's a really good question. I think that the agencies keep all the requests on file. I actually recently submitted a FOIA request to see if EFF had an FBI file. And it turned out that all they had on EFF were our FOIA requests. And some of the filings that we had done in some of our lawsuits against the government. But I don't think there's any requirement that they have to keep every FOIA request on file, but I'm sure they do. And if you wanted to, I think a really interesting FOIA strategy could be, I want all of the requests that so and so has submitted, somebody that you're interested in who does FOIA work along the lines you're interested in and say, I want all the documents that are responsive to those requests. Yes. That's still a completely open question. And actually at EFF, we're interested in cases like that, because we think that that's a really good opportunity to do impact litigation and establish some good precedent there. So if you are somebody who's a blogger and you submit a FOIA request and they're like, sorry, you're not a journalist. We're not giving you expedited processing. We're not giving you preferential fee treatment, whatever. Go ahead and let us know, because we're interested in trying to help define that. That also is a good question. I don't know the answer for sure. And it's something that I've speculated with some of my colleagues about before. Like, would it be a good idea to ask for your own FBI file? Or would they then, moving forward, not put certain stuff in it because they know you're the type who would ask about it? And I really don't know. My gut feeling is that probably it doesn't raise any flags, but I don't know that for sure. So sure, no problem. He asked whether you can ask for somebody else's FBI file. Al Capone's, for example. So if it's somebody who's of historical interest like Al Capone and somebody who's dead, like Al Capone, I think it's, yeah, you can ask for it and you will get it. If you're asking about the FBI file of your neighbor because you think that he was an informant in an investigation, they won't give that to you. They won't give it to you because, number one, there are privacy implications to that. And number two, if the person has assisted the law enforcement investigation in the past or continues to do it, it could compromise some investigation. Now, if it's somebody who you know and is interested in getting the information himself or herself, you can do a thing where you can basically get their consent. You can have them sign a waiver or something and get the information that way. How about a public figure? Yeah, public figures, I think, most likely you can get that kind of stuff. It's a little blurry line because what kind of public figure, I mean, like Michael Jackson, I'm sure you can get Michael Jackson's stuff. Like the mayor of your town, certainly a public figure, definitely a political person, but the FBI might decide there are some privacy implications there and might not be as forthcoming. Okay. Oh, I'm so sorry, absolutely. Yep. You request with paper where the records are electronic and charging you excessive fees because of that. Yep. I'm really glad you asked that question. I actually kind of meant to address that in my presentation that I didn't. The question is, what do you do when an agency is giving you documents in paper form when it appears that it's electronic information and they're charging you an arm and a leg because they're giving you this paper and their duplication fees and stuff? So under the FOIA, you can request that information be given to you in electronic form and that's often a very good idea because it keeps down duplication fees. And so if you have any inkling that the stuff that you're looking for is likely to be in a database or whatever, certainly mentioned in your request that you would rather they not print out rings of paper that you'd rather just have it on disk or whatever. And you can ask for it in whatever format you like. If they don't maintain it in that format, they don't have to make something new for you but it certainly would kind of open the door for sort of talking about the best way to do it. I've had situations where I requested stuff and turns out there are databases that are responsive to that but I hadn't even known. Like it wasn't really what I was requesting and they come back and say, hey, can we just give this to you in a spreadsheet that will send you on disk? And it's like, yeah, that's great. And that way, you know, you have the data, it's much more easy to sort through. You don't have to pay the duplication fees. Yep, thanks for asking that question. Yes. So the question is, if an agency says that there are no records responsive to a request, are they stuck with that position later like in litigation for example? So, I mean, I assume you're asking about a situation where they say at first, sorry, there are no records and then later they're like, oh, well, we went back and looked and it turns out there are. Is that right? Yeah, so I think in a situation like that, they probably wouldn't be stuck in that with that representation and actually, that's better for you anyway, right? Because you're getting the stuff that you want, right? Yeah, I've had a lot of situations where they say, so we looked, here's the stuff that we found, then later they come back and they say, actually we looked and there's more stuff and you know, that never seems to bother me because I want that stuff anyway. And so I think that if you're looking for information, you know, I don't think I would make much of an issue of the fact that they find more stuff. Right, I think I need to assign some to you again. Any two requests that are unacknowled in the same personnel file yield different results? Yeah. Because they're processed by different people. Right. What happens with these sorts of requests? They get a different file back? So his question now is, you know, about consistency between, you know, different people and also I would say different agencies processing the same request. You know, these are human beings who are doing this, right, and sometimes people make mistakes and sometimes they're judgment about a certain issue can be different. And so, you know, I've definitely seen situations where I get one document from one agency that has certain redactions and I get the same document from a different agency with, you know, fewer redactions or more redactions. So that definitely happens. You know, in terms of like a legal position to push on like before a judge on that, I don't know that there is, you know, much to say about it other than, you know, you could argue that some stuff was improperly redacted and you can tell that because this other agency gave it to you. And I think that's kind of like just a, you know, more a common sense kind of a thing rather than, you know, anything in the law that says that, you know, they can't do that. Does that make sense? No. No, there's nothing in the law that says they can't offer it in the future if they don't provide it now. And in fact, a lot of exemptions can be invoked just discretionarily. Is that a word, discretionarily? So, you know, for example, there's this one exemption that says that the government doesn't have to give you deliberative, pre-decisional stuff. So this is like, they're mulling over a decision, should we do this, should we do this? Well, I don't know, I think we should do this. They don't have to give you records about that, you know, that process because, you know, if they did, you know, basically they would sort of stifle their decision-making process and they would feel nervous about exploring possibilities because they would know that that could all be subject to public scrutiny, right? But if they want to give that to you, they can. And one agency might decide to give it to you and another agency might say, no, you know, that's something that's, you know, for us too sensitive, we're not gonna give it away. Anybody else? Yes. Absolutely. And in fact, you have to appeal before you can file suit. So, yes, you can appeal and I would encourage you to do so. I'm sorry, his question was if they don't give you something you asked for, could you appeal? Yes. I'm sorry, I can't hear you. Could you speak up, please? That's a great question. He asked, what if you find information in a file about yourself that's incorrect? So, under the Privacy Act, you, five minutes, okay. Under the Privacy Act, you generally have the right to request that information be corrected. You have the right that information that's maintained about you be accurate and complete. And you can request that they, you know, basically correct anything that you find wrong in the files about you. But there's a caveat here, which is that that law also lets the government exempt certain systems of records from requirements like that. So, for example, if you were on the terrorist watch list, you would never see that file, by the way. But if you were on the terrorist watch list, and there was information about you that was incorrect, if you somehow figured that out, you wouldn't have any right to ask that it be corrected or amended in any way. Because that system of records has been exempted from those requirements. So, this is an increasingly big problem because in the post-911 era, a lot of these sensitive databases that are used to make decisions about people are exempted from that kind of requirement. Yes. The question, correct me if I'm wrong, but I think the question is what I recommend having a FOIA request submitted through an attorney? So, I think that that's a personal decision. I mean, if it's something that is really important to you to get just right and you expect to pursue it and it's like an important business thing for you, you might have an attorney do it. But of course, that's going to cost money, that's going to be more expensive. And I think that anybody is perfectly capable of writing a great FOIA request. So, I think that that's up to you. I don't think it requires a whole lot of specialized knowledge. And to the extent that it does require specialized knowledge, you probably have it, because you know what you're interested in. I'm sorry, could you repeat that? So, the question is basically, are there situations, for example, when you're asking for expedited processing where it might be beneficial for the request to come from an attorney, probably so they take it more seriously? Is that what you're thinking? You know, on a common sense level, I would say, yeah. But I also think you can draft a request that is perfectly excellent and get what you want. It may be the case that if it comes from an attorney, it looks a little more official and the agency's like, ooh, we should make sure that we really think about this carefully. But I don't think that it's something that's so important that I would suggest that all of you hire lawyers to do your FOIA requests. Okay, so I'm gonna go to the Q&A room now and I'm happy to talk to any of you about any questions that you have. And I'm also gonna be around all day. EFF has a bunch of presentations today. I encourage you to go to as many as you can. They're gonna be awesome. So, thank you so much for your time. I appreciate it. Thank you.