The Freedom of Information Act (FOIA) (5 U.S.C. § 552) requires agencies of the U.S. government to disclose documents and information to any person who requests such documents or information. The FOIA.gov website states: “The basic function of the Freedom of Information Act is to ensure informed citizens, vital to the functioning of a democratic society.” However, agencies are not required to disclose all records (or all parts of records) to requesters and, depending on who is running the government, it has attempted to reduce the scope of the open records laws and hide government records from the public.
There are currently nine categories of records that permit agencies to withhold certain records from requesters. The exemptions range from classified information; information that is compiled for law enforcement purposes; information that would be privileged in a civil discovery process; and even information that would reveal data about oil wells. See 5 U.S.C. § 552(b)(1)-(9) for a full list of exemptions. These exemptions are often abused by government agencies in order to prevent important document disclosures to the public and often starkly contradict the intent of this law.
Since FOIA was enacted in 1966, it has served as a valuable tool for journalists, activists, academics, and curious members of the public to learn about the inner workings of the U.S. government. However, in many activist milieus it is still an underutilized means of discovering information that could be helpful to a particular cause or movement.
In the past, revelations from FOIA disclosures have allowed activists and organizations to better understand threats and tactics of government repression, expose government corruption and constitutional violations, and map increasingly cozy relationships between the federal government and corporate industry.
For instance, last year the ACLU submitted a FOIA request to several government agencies, including the FBI, for records “pertaining to cooperation between federal, state, and local law enforcement entities and private security companies around preparations for anticipated protests against the Keystone XL pipeline.” The ACLU received records that revealed that the Department of Justice is preparing to meet resistance to the Keystone XL pipeline with the same kind of paramilitary and counterterrorism tactics that were used at Standing Rock, calling it the “Standing Rock Model.” While the ACLU received many records in response to the FOIA request, they claim that the Department of Homeland Security, Department of Defense, and other federal agencies withheld additional records in violation of FOIA.
When a federal agency refuses to hand over documents that a requester believes they are entitled to, the requester must go through a series of “administrative appeals.” After they exhaust the appeals process and still believe the agency is improperly withholding documents, the requester’s last vehicle for forcing an agency to disclose records is a federal civil lawsuit. In the FOIA request noted above, the ACLU exhausted the administrative appeals process and, in September of 2018, filed suit against several federal agencies. This case is still pending.
The ACLU cited records uncovered by The Intercept journalists Will Parrish, Alleen Brown, Alice Speri, and others, in their initial request. These records revealed widespread coordination between federal, state, and local law enforcement with private security corporations and the extractive industry to repress indigenous and environmental activists at Standing Rock (and beyond). Repression efforts included the obvious instances of excessive force, the creation of militarized zones, extensive spying, infiltration, planting provocateurs, operating misinformation campaigns, and concerted efforts to exploit or create divisions amongst activists based on race, religion, or veteran status, to name a few.
The value of the records revealed by the The Intercept and the ACLU cannot be understated. Activists have now learned far more about the extent to which the state and corporations are willing to go to prevent the kind of massive structural changes to the current political and economic order that are clearly necessary. Knowing how the state and corporations will respond is crucial to effectively organizing for a better future. If movements are unable to understand the ways the state and capital have attempted to disrupt and destroy their progress, it is almost inevitable that the state and capital will continue to win. As a tool for better organizing, it follows that individuals and organizations should be making regular FOIA requests to better understand the obstacles they will face. And, if the FBI or other government agency already has a document referencing you or your organization, you should know about it too.
If you are interested in submitting a FOIA request on your own, our amazing friends over at the Center for Constitutional Rights (CCR) just released a fantastic guide to FOIA, “FOIA Basics for Activists.” You can also check out the guide at FOIA Wiki. The FOIA Wiki is an in-depth guide to FOIA and was created by several organizations, including the Reporters Committee for Freedom of the Press, Muckrock, and The FOIA Project.
The federal government has intentionally crippled the FOIA system so that it is almost inoperable (using computers from the 1990s, understaffing FOIA offices, etc.). As a result, most FOIA requests will need to be administratively appealed, and more often than not, a federal lawsuit will be required to obtain all of the records you are entitled to by law. We suggest that once you have a final agency decision on your administrative appeal that you contact us or another lawyer to determine whether filing a federal lawsuit will pry those records loose. FOIA has a fee shifting provision, meaning if you win, the government pays your lawyer for their attorney time spent on your case, and pays you back for any costs, like filing fees, that you must pay to file suit.
Making a FOIA request is relatively simple. In fact, most people and organizations make these initial requests online, and without the assistance of an attorney. If doing so, make sure to keep copies of everything you submit, including dates, people you spoke with, etc. If you or your group want some help filing a FOIA request, please feel free to call the Civil Liberties Defense Center or submit a request here.
Assert your rights, we’ve got your back! Knowledge is power!
 The CLDC provides a Know Your Rights training for Activists that details and illustrates the documents and tactics referenced here. Contact email@example.com if your activist group would like to schedule this training.