• Prof. Lamdan

Preparing for Our FOIA Officer Negotiation

Updated: Feb 20, 2020

As we prepared our FOI requests requesting state-level clean air law enforcement data, we also sent a similar FOIA request to the EPA, asking for emails with state department of environment heads regarding Clean Air Act enforcement. Here is a link to our request.

We waited for three months for a response from the EPA before contacting the FOIA officer assigned to our request: Justin Flam. We wrote Justin a follow-up email listing all of our past communications and saying that if we do not get the responsive records or the agency's explanation for why they are being wittheld by March, 1, 2020, we will have to consider filing a complaint against the EPA, pursuant to 5 U.S.C. Section 552(a)(4)(B), in the United States District Court for the Southern District of New York.

We sent the email on February 1, 2020, and on February 2, 2020, we received an email response from Justin asking to set up a video conference to discuss the status of our FOIA request. We are now preparing for the meeting, and how to negotiate with Justin and EPA legal counsel. The conference is scheduled for February 25, 2020.

Here are the emails that preceded the conference.

Here are some FOIA-relevant negotiation considerations

from our friends at HLS:

  • What do we want from this negotiation? List short-term and long-term goals and dreams related to the negotiation.

  • What are our strengths—values, skills, and assets—in this negotiation? What FOIA law/practice is on our side?

  • What are my weaknesses and vulnerabilities in this negotiation? What FOIA law/practice is on agency's side?

  • Why is the other party negotiating with me? What do I have that they need?

  • What lessons can I apply from past negotiations to improve my performance?

  • What deadlines are we facing?

  • What are my interests in the upcoming negotiation? How do they rank in importance?

  • What is my best alternative to a negotiated agreement, or BATNA? That is, what option would I turn to if I’m not satisfied with the deal we negotiate or if we reach an impasse? How can I strengthen my BATNA?

  • What is my reservation point—my indifference point between a deal and no deal?

  • What is my aspiration point in the negotiation—the ambitious, but not outrageous, goal that I’d like to reach?

  • What are the other side’s interests? How important might each issue be to them? What do I think their reservation point and BATNA may be? How can I find out more?

  • Who has more power to walk away?

  • Is there a zone of possible agreement (ZOPA) between my reservation point and the other side’s? If there clearly is no room for bargaining, then there’s no reason to negotiate—but don’t give up until you’re sure. You may be able to add more issues to the discussion.

  • What is my relationship history with the other party? How might our past relationship affect current talks?

  • Are there cultural differences that we should prepare for?

  • In what order should I approach various parties on the other side?What is the hierarchy within the other side’s team? What are the patterns of influence and potential tensions? How might these internal dynamics affect talks?

  • What potential ethical pitfalls should we keep in mind during the negotiation?

  • Who should be on my negotiating team? Who should be our spokesperson? What specific responsibilities should each team member have?

  • Do we need to involve any third parties (agents, lawyers, mediators, interpreters)?

  • Is an agreement likely to create net value for society? How can we reduce potential harm to outside parties?

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