• Prof. Lamdan

Class 4: FOIA Prep Work - Using Forms and Templates

Do this email assignment before class next Tuesday as we start thinking about drafting our FOI requests: Send me one email containing these 2 things:

  • Find the freedom of information law for the state you chose and send the statute citation to me

  • Find 3 similarities and differences in the FOI request examples below and send the list to me

Overview

Now that we've familiarized ourselves with the task at hand (getting records about states' environmental law enforcement), it's time to think about how to approach the task. How will we draft, track, and follow up on our FOI requests? There are a lot of things to do, including:

  • Figuring out the contours of our state's freedom of information laws

  • Deciding whether we need to file a FOI request, and if so, what we need to ask for. This work involves 1) seeing what's already available online, 2) seeing what state agency (or agencies) may have this information, 3) determining the scope/type of records we need. What dates should we limit the records request to? What environmental data should we request? Do we want to ask for records aside from annual reports? If so, what types of records may contain the information we need?

  • Consider whether we can ask for a fee waiver and decide how much we are willing to pay for the records we request.

  • Decide, as a class, how we are going to track all of these requests.

All of these details must be determined before we write a word of the FOI request, itself! Whew!


Once we get these details pinned down, we're ready to start writing our request... Which leads us to the next step: figuring out what goes into a FOI request. What do FOI requests look like? What do you have to include in them? (Some of this will vary depending on which state you're filing your request in.) Luckily, in the freedom of information request world, you never have to start from scratch. The internet is teeming with FOIA request forms and templates.


The use of templates and forms is not unique to FOIA - forms and templates exist for many legal documents that lawyers draft. In fact, Westlaw, Lexis, and Bloomberg law have entire databases full of thousands of forms. Forms can save time and help guide our work. However, there are some guidelines for how to use forms effectively:

  • Critically assess forms before you use any part of them. Forms can contain errors, be designed for different jurisdictions, lack specificity, and be outdated/short of necessary information/provisions. I have never seen a form that didn't need editing, at the very least.

  • Every legal circumstance (and FOI request!) is unique, so it's unlikely that there is a magical form that is exactly what you need for your circumstances. Forms are best utilized as a guide, not as text to cut and paste, verbatim, into your own work.

  • "You don't know what you don't know." If something is missing from a form or template, you may not know it, especially if you're working on a topic or in a jurisdiction that you're not familiar with. I never rely on a single form or template. I gather a selection of documents to compare and contrast.

To experience how different various FOIA requests can be, study the following 2 FOIA requests and send me (sarah.lamdan@law.cuny.edu) an email that identifies 3 similarities and 3 differences between these requests:

  1. Sierra Club, et al. request for Federal Energy Regulatory Commission Records

  2. Lucas Smolcic Larson (investigative reporter) request for Federal Energy Regulatory Commission Records (Read the first entry on this MuckRock webpage - we are going to get to talk to the people who run MuckRock next week, so this is also a good opportunity to see how they file and track FOI requests.)

For instance, you may notice that each of these requests cites a FOI statute, but that one request is very long and one is very short. There is a debate in the FOIA community about whether FOIA requests should be long, with plenty of background and explanation, or whether they should be short and to the point. Lawyers tend to draft longer FOIA requests. Why do you think a lawyer may include more information/discussion in a FOIA request than, say, a reporter?


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