Using Open Records and Freedom of Information Laws

Open Records Acts or Freedom of Information Acts

(FOIA) are laws that give you the right to access public documents, which means anything in possession of a public agency. Since the Vietnam War and Watergate, when government secrecy created so much popular anger, Americans have insisted on having the right to know what public officials and agencies are doing. Because so few states have full subsidy disclosure, there could be no economic development accountability without open records laws.

Every state has a law, modeled on the federal Freedom of Information Act, affirming the public’s right to see government documents. The federal FOIA permits “any person” to request access to agency records, including citizens and non-citizens, corporations, universities, and state and local governments. Most state laws have similarly broad definitions.

Information covered by the law

Each state sets its own rules, but generally the open records act applies to all government agencies. Open records acts also cover any part of an organization that spends or is supported in whole or in part by public funds. Some states grant money to private non-profit organizations to administer economic development, including company recruitment. Many open records laws would still cover information in the hands of such agencies because they are funded with public money, so don’t hesitate to submit an open records request to such an entity.

“Public information” is generally construed to mean information collected, assembled, or maintained by a government body, or collected, assembled, or maintained for a governmental body if it owns or has rights of access to that information. As you can see, this covers a very broad range of information. But that is exactly the intent: taxpayers should be able to see any information that is used by people acting on the public’s behalf, unless their elected representatives have voted to restrict access to a specific type of document.

You should be able to get any information that the law does not specifically exempt. If portions of a document you requested are exempt, the federal FOIA requires that the agency provide you with an excerpted portion of the record – that is, it can’t withhold an entire document just because some portions of it are exempt. This rule holds true in the states as well.

Every state FOIA has some exemptions. For example, states typically deem personal income tax records and adoption records closed. The primary exemption that will concern you is business information, which falls into two categories: trade secrets and privileged or confidential information. With regard to economic development records, exemptions for information deemed “proprietary financials” or “trade secrets” are intended to protect a company from the release of information that, in the hands of a competitor, would harm the company.

Every state’s law has an exemption for this type of information, but these exemptions are not uniform. More importantly, these exemptions are so broad that they should always be appealed to the state’s attorney general for an interpretation of how they apply to any specific request.

Your ability to see information about economic development deals may also depend on when you ask for it. In many states, information about subsidies is not available until after the development agreement has been signed. Companies (and some public officials) offer several justifications for such secrecy. If a company is playing three places against each other, it may not want each city to know the identity of its competitors. If the deal is large and will require a substantial land purchase, the company may want to quietly secure the land before news of the deal drives land prices up.

However, some observers point out other corporate motives. They note that secrecy puts each competing city in a “prisoners’ dilemma.” That is, like the suspect who is told by police that his co-conspirator has confessed, a city being held in the dark has no way to know how many subsidies the competing places are offering. Since it is not an open auction, secrecy makes it easier for companies to get more subsidies. They also note that secrecy serves the company’s interests if it expects there will public opposition to the deal, because of toxic emissions or other controversial results of the deal.

Don’t assume you won’t be able to access deal information before a deal is signed, however. Because most deals involve discretionary subsidies that require public hearings and board votes, there is usually a brief period between when a deal is announced and is formally enacted when some information should be available (particularly when its release is needed to enable substantial public input).

How to make a FOIA request

In many cases, you can get information just by asking an agency to give it to you. If you know exactly the documents you are looking for, find out what agency has them, call them up, and ask them to send them to you. This is the best first approach, as getting a response to a formal written request will likely take several weeks.

If you are unsure what documents exist, or an agency’s staff requires a written request, you will have to make what is called a FOIA requestc (or “FOIL” — Freedom of Information Letter). Making a FOIA request simply means writing a letter requesting the documents under the Freedom of Information Act.

Address your letter to the head of the department of the agency that granted the subsidy, the Freedom of Information Request officer for that agency, or, in the case of requests for local development agreements, to the city or county clerk.

Cite any applicable freedom of information laws and describe your rights in the letter in order to demonstrate your familiarity with the law. If you know the time limit within which a FOIA request must be answered in your state (7 days, 10 days, etc.), include that in your letter as well.

It is important to be specific in your information request. Asking for broad categories of information might delay the agency’s response. Your request should be narrow enough so that an employee can figure out what documents you want. If possible, cite newspaper articles, legislative reports, or other publicly-available documents to demonstrate that the records you are requesting actually exist.

On the other hand, you want to avoid being so specific that you preclude useful information you are not aware of. Unless you are very confident of the exact documents you need, ask for “any and all documents related to economic development assistance to X company, including but not limited to [list specifics].” This way you may receive documents you didn’t know existed.

You can also specify in your letter what form you would like the information in – for example, information in any format or only information that is available electronically.

An agency may charge fees for the costs of searching for the documents, the costs of reviewing the documents to decide if they should be included, and the costs of duplicating the documents. You cannot be charged the reviewing costs if your request states that the information is not for commercial use. If your request is on behalf of an educational or non-commercial scientific institution or as a representative of the news media, you will pay only duplication costs. Many public service organizations that distribute information to the public can be considered representatives of news media. You should state this in your letter. Before you make your request, ask the agency what its fee schedule is, and also ask that the fee be waived.

What to expect as a response

The agency has to respond to your letter within a certain number of days, a time frame set by each state’s law. Under the federal law, the agency has 10 working days to decide whether to comply and to inform the person of the decision and right to appeal. The agency has 20 days to respond to an appeal, and must inform the person of the right to appeal its decision to a federal court.

If your request is granted, you will be told the charge for copying the information (if any) and instructions for obtaining it. If your request is denied, you will receive a letter indicating why. The major reasons for denial are:

• your description of the requested document is inadequate;
• the requested material does not exist; or
• some or all the materials are exempt from disclosure.

If your request is denied because the documents you want fall under one of the exemptions to the open records act, the letter must state which exemption that is (usually with a statutory citation). It must also explain your right to appeal.

Appealing a refusal

The agency to which you direct your FOIA letter is not the final arbiter of what is or is not public. There are two avenues for deciding an appeal: one is the attorney general, who can issue an opinion on how the Act should be construed; the other is the state courts, which can hear litigation brought by citizens seeking access to public documents. Your letter will explain the appeal process in your state.

When all else fails, call an attorney. Try the American Civil Liberties Union or the National Lawyer’s Guild in your area. Once an attorney is involved – even if you simply cc her on your information request – officials will move more cautiously. If they don’t think you are likely to sue, they may ignore your request. You can also try contacting a friendly local official to put some pressure on the agency, or have someone else make the request, if you believe that the agency is biased against you or your organization.

Additional resources

The Reporter’s Committee for Freedom of the Press has an excellent guide to state open-records and open-meetings laws and a guide to the federal Freedom of Information Act.