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No Treat for Papering Agencies

If you’ve been a FOIA professional long enough, you’ve been papered. It makes one feel like the homeowner who discovers a toilet-papered yard the morning after Halloween – all trick, no treat.

For FOIA professionals who haven’t been papered, here’s how it works: a requester will flood email inboxes, mail boxes and yes, even fax machines, with page after page after page of electronic or paper correspondence. We at OGIS recently heard from one agency that had received several hundred requests – many for substantially the same information – from a single requester in the last several years.

We’ve observed several variations on the papering theme. There’s the stack of stuff that comes in with a FOIA request buried somewhere in there. While it may not appear at first glance to be a FOIA request, the FOIA professional must cull through the stack to see if it “reasonably describes” any requested records, in accordance with the statute. A variation of this is the requester who submits pages and pages of supporting evidence for why a record should be disclosed or why the requested record must exist.

There’s the requester who won’t take “no” for an answer and figures he’ll just keep submitting the same request over and over, perhaps with the hope that the agency will change its mind. Of course, personal privacy concerns may change if a person dies, and classified records will eventually be declassified, but these changes are not likely to happen in the short term. If information must be withheld under Exemption 6 to protect a subject’s personal privacy in October, the same exemption generally still applies in January. (Exemption 7(A), which protects from disclosure some law-enforcement records, is an exception as it’s the only exemption that’s temporal by design; when an investigation ends, so might the exemption’s relevancy to a particular record.)

Similarly, there’s the requester who thinks that if she hasn’t gotten a response in the 20 business days mandated by statute, she ought to remind the agency by re-submitting her request again and again. We realize that some requesters wish to maintain some type of contact with an agency particularly when the agency has not responded in any way to the request. While this feeling is understandable, the practice is counterproductive. This is one reason that OGIS has posted on its website best practices for filing a FOIA request, which we think offers some insight into how best to make a request.

We at OGIS are starting to tell paperers that they are not helping to move their request along. Excessive paperwork slows the process, making FOIA less efficient for all requesters and the agency itself. It’s not a pleasant message to deliver, but it’s important. We’d love to hear how FOIA professionals handle this issue.

Comments

Comment from Jason Smathers
Time October 28, 2011 at 7:52 pm

This advice is sound for most agencies. Unfortunately, other agencies beg excessively long requests. For example, to be considered news media, some agencies requires nothing less than an academic paper explaining your qualification along with a portfolio to demonstrate a record of publishing ability. Then there are the agencies that deny requests systematically for not being specific enough. Of course the situation described here is not helpful, I fear agencies beg requesters to behave this way by ignoring the FOIA and their own regulations.

Comment from Kirsten Mitchell
Time October 31, 2011 at 11:04 am

Thank you for your comment, Jason. Papering agencies is usually more about the quantity of paper or emails than it is about the quality. Regarding the requirement to demonstrate a past publication record or expected publication, OGIS would not categorize a well-written demonstration of such as papering an agency. Nor would we put into that category a well-thought-out multiple-page request seeking specific records. As we said in the post, OGIS recognizes that papering agencies is tempting particularly when the agency has not responded in any way to a request. Communication between agency and requester often, but not always, discourages papering.