Feds dinking you around? Plunk down $350 and then get it back (along with your records)
I just back from the SPJ national conference in Atlanta, Ga., (great time had by all - check out the handouts and highlights at the convention page) and I have to pass along something I learned from a FOI panel that included SPJ attorney Laurie Babinski, Reporters Committee Director Lucy Dalglish and former Department of Justice records/privacy guru Dan Metcalfe. The panel was on the new provisions of federal FOIA and how they are working so far (see a FOI Toolbox column I wrote on the subject in the August issue of Quill magazine).
An important provision in the OPEN Government Act amendments to FOIA signed into law in December is that if a person is wrongfully denied records and is forced to sue a federal agency to get them, and the person does sue, then the agency must pay back the costs of suing (including attorney and filing fees) if the person ends up getting the records. This thwarts the sneaky practice of agencies denying requests they know are valid, knowing the person won't pay the expense of filing a complaint, but if the person does sue then they turn around and hand over the records before it goes to court and the litigant is out the money. The new provision makes the agency pay that person for those expenses.
Dalglish and Metcalfe urged reporters to file a claim in U.S. District Court if denied a valid request by a federal agency. Metcalfe said it costs about $350 to file a claim, at least in some courts, and doesn't require an attorney. That is affordable (much more so than filing a suit in superior court in most states for violations of state public records laws). And if you get the records then the agency must pay you the $350 back. Metcalfe and Dalglish said the claim will be effective because it will get your request on a fast track, in the hands of attorneys who will usually actually follow the law (even if they read the law narrowly), and the agency will want to get it out of their hair because the legal fees in handling the case will be a bigger pain than giving you the records and paying for your $350 filing fee.
This is something that just about any media organization can afford now, especially if there's a good chance the money will come back. Laurie Babinski told me that several people have prevailed in court this year and got their attorney and filing fees paid by the agency because of this new provision. That will make agencies think twice before they choose to break the law! Take advantage of this new provision. Don't roll over! For more information about using FOIA and filing a claim, check out the Reporters Committee guide to using FOIA.