How to Overcome Common Tactics Used to Deny FOIA Requests

1. Invoking Specific FOIA Exemptions

How to Overcome FOIA Exemptions:

• Appeal the Decision: Carefully review the exemption cited and challenge it if the agency has not provided a reasonable explanation or if the exemption does not seem to apply. Provide legal arguments or past case precedents that counter the exemption.
• Narrow the Request: If possible, narrow the scope of your request to exclude the information that falls under the exemption, making it more difficult for the agency to deny access to the remaining records.
• Request a Vaughn Index: A Vaughn Index is a detailed list that an agency must provide explaining each document withheld and the specific exemption applied. This can help you identify weak points in their justification.

2. Claiming “No Responsive Records”

How to Overcome No Responsive Records:

• Challenge the Adequacy of the Search: Request a detailed description of the search conducted by the agency, including the locations searched and search terms used. If the search appears inadequate, you can argue for a more thorough search.
• Provide Additional Details: If you suspect the records exist, refine your request with more specific details such as names, dates, or keywords that would help the agency locate the documents.

3. Vagueness or Overbreadth

How to Overcome Vagueness or Overbreadth:

• Clarify and Refine Your Request: Break down the request into more specific components or submit multiple smaller, focused requests. This can prevent agencies from claiming the request is too vague or broad.
• Use Sample Language: Reference language from successful FOIA requests to guide your phrasing and provide clarity on exactly what you are looking for.

4. Claiming Confidentiality or Privilege

How to Overcome Confidentiality or Privilege:

• Argue the Public Interest: If the withheld information is in the public interest, argue that the need for transparency outweighs confidentiality or privilege concerns.
• Request Segregable Portions: Ask the agency to release non-exempt portions of the records while redacting the privileged information.

5. Invoking Ongoing Investigation or Litigation Exemptions

How to Overcome Litigation Exemptions:

• Request Updates: Regularly request updates or the status of the investigation or litigation to know when the exemption no longer applies.
• Ask for Non-Investigative Records: Request records that may be related to the subject but are not directly part of the investigation, such as procedural documents or administrative records.

6. Excessive Redactions

How to Overcome Excessive Redactions:

• Challenge Redactions: Ask for a review of the redacted portions to ensure they were applied correctly. Use case law to argue against excessive redactions.
• Request a Line-by-Line Justification: Agencies must provide specific reasons for each redaction, so request this detail to identify overreach.

7. Charging High Fees

How to Overcome High Fees:

• Request a Fee Waiver: Demonstrate that the information is in the public interest and that you do not have a commercial interest in the records to qualify for a fee waiver.
• Narrow the Scope: Reduce the scope of your request to minimize search, review, and duplication fees.

8. Delaying Responses

How to Overcome Delaying Responses:

• Set Clear Deadlines: When submitting a request, specify that you expect a response within the statutory time limit. Follow up promptly after the deadline passes.
• File an Appeal: If the agency delays without reasonable cause, file an administrative appeal to challenge the delay.

9. Issuing “Glomar Responses”

How to Overcome Glomar Responses:

• Challenge the Glomar Justification: If the agency refuses to confirm or deny the existence of records, argue that the specific harm they allege is not reasonably foreseeable or lacks merit.
• Narrow Your Request: Reframe your request to avoid the specific grounds used for the Glomar response.

10. Claiming Security Concerns

How to Overcome Security Concerns:

• Request Specific Security Policies: Ask for the exact security policies cited to deny access. This can reveal inconsistencies or misapplications.
• Offer Alternative Formats: Offer to receive the records in a format that does not trigger the alleged security concerns.

11. Using “Pre-Decisional” or “Deliberative Process” Exemptions

How to Overcome Deliberative Process Exemptions:

• Request Final Versions: If the records are considered “pre-decisional,” ask for the final versions of the documents instead.
• Argue Against the Exemption’s Applicability: Argue that the withheld documents are factual or do not reveal internal deliberations.

12. Citing Privacy Concerns

How to Overcome Privacy Concerns:

• Redact Sensitive Information: Agree to have sensitive information redacted while still providing the relevant portions.
• Demonstrate Public Interest: If the records involve potential misconduct or public concern, argue that public interest outweighs privacy concerns.

13. Referral and Consultation Processes

How to Overcome Consultation Processes:

• Request Status Updates: Regularly ask for updates on the consultation or referral process and set clear deadlines for responses.
• Request Partial Releases: Ask for the release of any portions of the records that have been cleared while awaiting consultation on the remaining parts.

14. Arguing Record Creation Burden

How to Overcome Record Creation Burden:

• Ask for Existing Formats: Request the records in whatever format they already exist to avoid the argument of creating new records.
• Challenge the Burden Argument: If the agency claims undue burden, request a detailed breakdown of the resources required.

15. Declaring Records as “Non-Agency Records”

How to Overcome Non-Agency Records:

• Provide Evidence: Present evidence that the records are used for agency business and should therefore be considered agency records.
• Challenge Misclassification: Argue that the agency has a duty to obtain records from its contractors if they pertain to official business.

16. Denial Based on Improper Requests

How to Overcome Improper Requests:

• Follow Up with Proper Submission: Correct any issues cited in the denial, such as missing forms or incorrect details, and resubmit promptly.
• Clarify Requirements: Request clear guidance on the specific requirements needed to fulfill your request properly.

17. Claiming Information is Already Publicly Available

How to Overcome is Already Publicly Available:

• Request Direct Access: Ask for direct links or copies of the allegedly available information, especially if it is hard to find.
• Argue for Completeness: If the publicly available information is incomplete, argue for the release of full and accurate records.

18. Classifying Information Retroactively

How to Overcome It:

• Challenge Retroactive Classification: File an appeal arguing that retroactive classification should not be used to deny access to information that was previously available.

19. Issuing Partial Releases with Key Information Withheld

How to Overcome Key Information Withheld:

• Request Full Context: Argue that the context of the withheld sections is necessary for understanding the document and challenge the withholding decision.

20. Appeals Process Challenges

How to Overcome Process Challenges:

• Follow Up Regularly: Regularly check on the status of your appeal and document all correspondence.
• Escalate to Litigation: If the administrative appeal fails or is excessively delayed, consider filing a lawsuit to compel disclosure.

21. “Controlled Unclassified Information” (CUI) Labeling

How to Overcome (CUI) Labeling:

• Request Clarification on CUI Designation: Ask for the legal basis and specific guidelines used to label the information as CUI.
• Challenge CUI Labeling: Argue that the CUI designation does not meet the criteria for FOIA exemptions.

22. Misclassification of Records

How to Overcome Misclassification of Records:

• Request Reclassification: Provide evidence and argue for a review of the records’ classification to ensure they are properly categorized under FOIA guidelines.

23. “National Security” as a Catch-All Excuse

How to Overcome Catch-All Excuse:

• Request Specific Justification: Ask for detailed explanations on how the release of information would harm national security.
• Appeal or Challenge in Court: If the justification is vague or unsupported, consider an appeal or legal action.

24. Use of “Draft” Status

How to Overcome Draft Status:

• Request Final or Circulated Versions: Argue that if the document has been circulated or used for decision-making, it is not just a “draft.”
• Seek External Evidence: Use other public records to prove that the “draft” has been implemented or referenced in final decisions.

25. Non-Responsive or Vague Communications

How to Overcome Non-Responsive or Vague Communications:

• Demand Clarity: Insist on specific and detailed responses to your inquiries and challenge any vague or non-responsive communication.
• Escalate if Necessary: If the agency continues to be non-responsive, escalate the matter through appeals or litigation.