Global Justice Center Blog

"That's Illegal" Episode 6: Freedom of Information

In this episode of That's Illegal, GJC's Executive Assistant Merrite Johnson explains the process of requesting information from the US Government via the Freedom of Information Act (FOIA). 

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Transcript: Freedom of Information

STEPHANIE OLSZEWSKI: Welcome to "That's Illegal!" a podcast about international law in the age of nationalism. This podcast is produced by the Global Justice Center or GJC. The Global Justice Center is a legal, human rights non-profit based in New York City. Our work focuses on moving international humanitarian laws from paper to practice. Our staff consists of lawyers with international law expertise who work regularly with partners at the EU and the UN.

Given the recent development of countries turning increasingly nationalistic and the rise in global tensions, we thought it would be a good idea to sit down and talk about the importance of international law, why we have it, and why we should implement it. So every week we're going to take a look at the latest news and break down the legality of what happened, using the framework of international law.

STEPHANIE OLSZEWSKI: Today, we will be discussing the Freedom of Information Act (FOIA)—a law that allows for the full or partial disclosure for previously unreleased information controlled by the United States government. We are joined today by Merrite Johnson, Executive Assistant at the Global Justice Center.

For the past year, Merrite has managed the Global Justice Center’s FOIA requests regarding US abortion restrictions. She will give us a history of FOIA and discuss her experience working with the government, submitting and receiving FOIA documents.

Welcome, Merrite! Thank you so much for joining us. Could you start off by giving us a background on the FOIA? What is it? When was the law passed? Give us a bit of context for why it exists.

MERRITE JOHNSON: FOIA stands for the Freedom of Information Act. It’s a federal law that was passed in the mid-1960s. Other states and cities also have their FOIA laws. We’re only going to talking about the federal one because that’s what GJC deals with.

The FOIA came out of the national security apparatus and was created during the Cold War. At the time, there were brand new systems of classifications. The CIA was expending its activities. There was no way for the public to get any of these records. There was no avenue for redress through the judiciary if you were denied this access. Congressman John Moss (who came up with the FOIA) was an open government advocate and spent twelve years trying to get this passed. He made a lot of enemies while doing this. Eisenhower couldn’t stand him. J. Edgar Hoover was not a fan. Kennedy and Johnson also hated him.

He was inspired to do this out of the Cold War. After Vietnam, a lot of Republicans got on board with keeping the government more accountable. By 1966, there was enough momentum—even though nobody in the Executive Branch wanted this to get passed. The House passed this bill 307-0, essentially, forcing Johnson to sign this. He hated the idea of the FOIA. He publicly disparaged John Moss—really vulgarly. He refused to have any kind of formal ceremony for signing this. He wouldn’t do it publicly. He issued a signing statement trying to undermine the passage of the bill. Ultimately, it went into effect in 1967. About ten years later, after Watergate, Congress amended it to make it a lot stronger. That’s kind of the FOIA law that we know today.

STEPHANIE OLSZEWSKI: Can you give us a bit of background on your experience with the FOIA at GJC? What is the general history of what you’ve submitted?

MERRITE JOHNSON: GJC’s FOIA requests deal with the Helms amendment and abortion restrictions in US foreign aid contracts. In the past, a lot of them have dealt with the contracts in Burma—we’ve been working there since GJC’s inception—and also in Iraq, Syria, Jordan, Lebanon, and any neighboring countries to Syria and Iraq that are receiving US money.

The requests that we’re submitting now deal with the expansion and reinstatement of the Global Gag Rule. It’s especially interesting to us because, now that the Gag Rule has been expanded, it involves a number of executive agencies. For example, Health and Human Services was never involved in any sort of Gag Rule related activities under previous administrations. It’s useful for us to know how they’re prepared to rule this out and implement it, and what the general feeling is at the federal government around how this is being expanded.

STEPHANIE OLSZEWSKI: Can you walk us through the process of submitting a FOIA request?

MERRITE JOHNSON: Submitting a FOIA request is very straightforward. Your letter to whatever agency you’re requesting from has to say who you are, your address and phone number, what you’re asking for, and why you want it.

STEPHANIE OLSZEWSKI: So any citizen can do it?

MERRITE JOHNSON: Yes, any citizen, any organization or business—as long as you tell them who you are and why you want it. If you have a good reason, then you can submit your FOIA request. That doesn’t mean that it’s going to be processed or the documents will be given to you. But you’re welcome to try.

GJC’s requests—because we have a team of lawyers here—are always very exact in what we’re requesting. We go into a lot of detail about what we mean. There is a long paragraph that includes power points, memos, and transcripts of calls—setting out the parameters very distinctly, so they can’t shirk their responsibilities at all. It’s also very helpful to include dates. If you say, “In this fiscal year or GJC has a recent request around the Gag Rule,” then it asks for email starting on November 8th, 2016 through May of 2017. It creates a much more structured way for the FOIA agents to search for documents.

STEPHANIE OLSZEWSKI: Can you give a specific example of a FOIA request that you’ve submitted and what the response was?

MERRITE JOHNSON: At the beginning of 2016, GJC submitted requests to the State Department, USAID, and later to Health and Human Services, asking for communications around the reinstatement and expansion of the Global Gag Rule. What we were looking for are emails, communications, memos, and the process behind reinstating and expanding this enormous policy, so that we can understand why these decisions were made, what was overlooked, and what their plan is. We can be better advocates in combatting the expansion of the Gag Rule. That was last March.

STEPHANIE OLSZEWSKI: You submitted the first request in March?

MERRITE JOHNSON: Yes. Last summer, we submitted the same thing to Health and Human Services. So far, we have only received responses with documents from the State Department. There are two sets from two different bureaus. One of them was heavily redacted. It’s basically unusable. We’re kind of in the process of appealing that. We’ve been told that we can expect a determination by this June, which is well past the response deadline of twenty days that the law sets out for them.  

STEPHANIE OLSZEWSKI: When did you get the first response from them after you submitted in March?

MERRITE JOHNSON: When you initially send in your response, they have twenty days to let you know that they’ve received it and they’ve assigned a tracking number. That part usually is not particularly difficult—for them to just acknowledge they have a letter, they’ve given it an ID number, and they are starting to work on it.

The difficult part is actually getting them to give you the documents. Because this work is related to the Global Gag Rule, we requested expedited processing to speed this along. Initially, we were denied expedited processing by the State Department, USAID, and HHS. But State and HHS gave us expedited processing on the grounds that not having these documents is a threat to the life and safety of an individual. In this case, millions and millions of girls around the world are going to be impacted by the Global Gag Rule. You can apply for expedited processing but it’s only for humanitarian concerns or if the public has an urgent need to know about the information that you are requesting. They won’t just give you things if you ask for them. You have to prove that you need these things.

STEPHANIE OLSZEWSKI: We’re still in the process of getting their response on that. Can you give an example of a successful FOIA request?

MERRITE JOHNSON: In the past, GJC’s FOIA requests have dealt with the Helms amendment and the way that abortion restrictions are incorporated into US foreign aid contracts. A lot of our past requests have had to do with grants to conflict zones in Syria or Iraq. The one we did in Burma was asking specifically for all the grants going to this one clinic on the border of Thailand and Burma.

STEPHANIE OLSZEWSKI: These are government grants?

MERRITE JOHNSON: Right. USAID was making those to the International Rescue Committee, the Red Cross, or whomever in order to give them money to do their work there. We’re specifically looking to get information on the kind of services that are being given to displaced people and survivors who have been displaced by the Burmese military.

STEPHANIE OLSZEWSKI: You want to see if the State Department is saying that you can’t perform these services but you can perform these? If the contract says that you can’t give these people an abortion?

MERRITE JOHNSON: Right. We made the request in March 2015 and didn’t get the document until January 2017, which is fairly quick—considering the enormous backlog and the number of documents that they had to go through. We also received 89 pages and only two of those had redactions on them, which is exciting because that’s very rare.

The part of US aid contracts that we’re interested in is the restricted goods, which is a standard language that’s added to every government contract. It lists goods and services that you can’t buy with government money. Those services are military equipment, luxury goods, gambling equipment, weather modification equipment, and abortion equipment. That’s in every single foreign assistance grant. This is proof that sexual violence survivors are denied the care that they’re entitled to under the Geneva Conventions.

STEPHANIE OLSZEWSKI: Could you give an example of a FOIA request that was not successful?

MERRITE JOHNSON: I wouldn’t necessarily say that this is not successful—at least, it hasn’t been successful yet. In 2014, GJC made a request asking for information on the contracts that the State Department had made in Iraq and neighboring countries to assist Iraqi refugees. This was in September of 2014. We only received a determination last month. It said that they don’t have any records responsive to our request. This doesn’t make any sense to us because the only reason we know about these grants is that they were listed in official government materials, saying that the state department gave these to groups in Iraq for humanitarian work. We’re appealing that one and have asked them to do another search. It doesn’t make sense that they’re publicizing these grants but say that they don’t exist.

STEPHANIE OLSZEWSKI: What is the appeal process like? Do you just send another email response?

MERRITE JOHNSON: You can appeal pretty much anything. You can appeal being denied expedited processing, fee waivers, etc. There are a couple of people in the FOIA office who deal with appeals. All you have to do is send another letter, explain yourself, and send it in by the deadline, which is 90 days after you get the determination. Sometimes that works. It’s worked for me in the past with some things—as long you give enough information and clear up confusion. After that, it will go to a specific government office that deals with resolving FOIA disputes. If that doesn’t work, then you can file a lawsuit. That’s the last resort, because it’s time consuming and expensive. There are law firms who will do FOIA lawsuits pro bono. It seems like it is possible to resolve simple FOIA disputes individually. There are journalist resources that tell you how to do it. They also caution you that it might not work out. You kind of hope it doesn’t come to a lawsuit.

STEPHANIE OLSZEWSKI: Have we ever sued?

MERRITE JOHNSON: No, we’ve come close. We’ve also threatened to sue. Sometimes even threatening to sue can light a fire under the FOIA people and make them work a little harder and respond to the things that you’re asking for. If you’re actually thinking about suing, it’s definitely a good thing to inform them of that. They also don’t want to deal with a big lawsuit.

STEPHANIE OLSZEWSKI: What would you say is the most frustrating part of doing the FOIA process?

MERRITE JOHNSON: I haven’t been doing it for very long, but it’s the fact that it can take years to get any kind of responsive documents and the feeling of getting that big FOIA envelope with all the documents coming from the State Department. You open it up and think that after all these months, I finally have what I want but everything is redacted. It is so discouraging.

STEPHANIE OLSZEWSKI: Having gone through the FOIA process, what are your general takeaways?

MERRITE JOHNSON: It’s great that it exists. The spirit of the FOIA is open government and transparency. It is created so that non-lawyers can do their requests and not have a problem, which is great—I’m not a lawyer. In the spirit of democracy, you shouldn’t need a law degree to be able to understand it.

There are also a lot of fantastic resources available online for journalists, NGOs, and students, who want to file FOIA requests and appeals. Those are also really helpful. It’s definitely the kind of process where you need to be on top of it. GJC’s practice is to keep a detailed chronology of every request that we make. From the day that the initial request letter was sent out to any calls or email that we have with the FOIA agency, so that we now how much time has passed. If it comes to a lawsuit, then we have all these records that we can pull out.

It’s very much the kind of system where if you’re not sticking your neck out and standing up for yourself, then no one else is going to come and ask if you need help. You have to advocate for yourself. Obviously, the federal government is enormous, and there are a lot of cases. If you don’t remind your FOIA officers that we’re waiting for important documents, then they might blow you off.

STEPHANIE OLSZEWSKI: Do you have any advice for anyone who wants to put in a FOIA request?

MERRITE JOHNSON: Definitely, be as straightforward and comprehensive as you can possibly be. The more that you include in your initial request letter, the better, because you can get the ball rolling. You don’t have to file a bunch of appeals. Keep detailed records of all the interactions you have with FOIA. Anytime you send an email, keep it somewhere in a file. Log every call you have with them and take notes. I always set myself reminders, every few week, to check in if I haven’t heard anything. I set reminders for deadline days. Usually, it’s twenty days after every correspondence that you send them.

Also, I think as a country, we’re not understanding of bureaucrats. It’s not their fault that they have this enormous backlog, and they have so many frustrated civilians trying to get this information out of them. While you can and should put your foot down and ask for what you’re entitled to under the law, you still are talking to another person. Be nice. In that way, it is a customer service experience. You need to be nice to the person who’s helping you.

STEPHANIE OLSZEWSKI: Do you know how big the FOIA office is?

MERRITE JOHNSON: It varies from bureaus to bureaus. I’m not sure how many people are in each FOIA office but I do know that over 2016, there were about 700,050 FOIA requests filed. Right after Obama was inaugurated, he released a memo about FOIA openness, saying that it’s everyone’s responsibility to maintain the integrity of FOIA and we shouldn’t be classifying things just because we can. His public statement was that agencies shouldn’t be redacting things just because they can or some materials might be potentially embarrassing to them. That sounds really nice.

Actually, a few months after that, the White House Counsel put out a non-public memo, saying that any materials found in FOIA requests that mention the White House needed to go through another level of review through the White House. This slows down response times and increases the chance that there are going to be political determinations in these FOIA releases. This is absolutely antithetical to what FOIA is supposed to mean.

2015 and 2016 were actually record high years for FOIA lawsuits. This meant that people were suing federal FOIA agencies for refusing to turn over record—either saying that none of these records existed or by redacting and outright denying them. Between 2009 and 2016, the rate of requesters receiving either censored files or nothing at all went up steadily from 65% in 2009 to 77% in 2016. Under Obama, despite having this wonderful air of openness about the government and our files and records, that’s not what we’ve being seeing at all.

STEPHANIE OLSZEWSKI: Has there been any difference between the Obama records and the Trump administration records?

MERRITE JOHNSON: It’s kind of unclear how the Trump administration is going to treat FOIA. It is very early. There haven’t been major memos or executive orders around the FOIA process from the White House. It might be too early to tell. It might not be a priority of the Trump administration. Journalists and NGOs have been able to use FOIA and to obtain information on the administration.

This week, a FOIA request pushed the White House to release some of its visitor logs. It is definitely useful. People have filed FOIA requests on the amount that the cabinet secretaries are spending on travel—funded by the tax payers. It seems unlikely that FOIA is going to become more efficient under Trump. There is already an enormous backlog-especially at the State Department and the Department of Defense. There has been an enormous number of new requests—since Trump took office. It doesn’t seem like it’s going to become more user friendly any time soon.

STEPHANIE OLSZEWSKI: Do you have any final thoughts?

MERRITE JOHNSON: The FOIA doesn’t sound like a cool or trendy issue. But it is incredibly important to maintaining our integrity as a democracy and maintaining freedom of the press. It is—and it should remain—a nonpartisan issue. FOIA is only effective when everybody involved is acting in good faith. If they want to, government agencies can find a lot of ways to stonewall and withhold information, making the process so convoluted and confusing that people just give up. That’s not to sound like a conspiracy theorist or to be disparaging any party or administration. This is an issue that affects everybody. It’s an issue where all parties—past administrations and the current administrations—could be doing better.

STEPHANIE OLSZEWSKI: Thank you so much to Merrite for joining us. For more information on the FOIA and the Global Justice Center’s FOIA requests, please visit www.globaljusticecenter.net

Tags: FOIA, United States, Podcast