Figuring out FOIA

By Kelly Carr
February 19, 2008 11:37 AM

NEXT: How to Craft a FOIA Request

Alec Klein knows that significant depth can be added to a story through a Freedom of Information Act request.

Two years ago he stumbled upon the refurbished medical device industry, a group comprised mostly of entrepreneurs with little or no medical background.

To learn more, Klein, an investigative business reporter at The Washington Post, sent a Freedom of Information Act request to the Food and Drug Administration asking for a list of companies in the business of refurbishing medical devices. The agency has regulatory oversight of the industry, but when the request was finally returned, it was not what was on the list that mattered, but what was missing.

“The U.S. government did not know all of the companies that were refurbishing single-use medical devices that were being put into people’s bodies,” said Klein, who wrote an in-depth series on the issue. “I had companies I knew of that weren’t on the list. That’s an example of how the FOIA request can be useful, just maybe not in the way I expected it.”

Klein and other veteran investigative reporters, like John Emshwiller of The Wall Street Journal, have found solid methods for uncovering information companies would rather keep private.

Both agree that one such method is a Freedom of Information Act request. But both also caution that it’s sometimes a lengthy process and that a FOIA must be approached strategically.

“The FOIA can be a useful tool, but it must be used judiciously,” Klein said. “Almost any time you are using FOIA it can’t be used in a vacuum, it must be used in conjunction with reporting and other public documents.”

Klein cautions not to craft open-ended requests. If you ask for everything under the sun, you most likely will create a lot more work for yourself. The best secret of a FOIA is to make sure you give the agency a targeted request and start early.

“Otherwise it could turn into a fishing expedition,” Klein said. “To get a response from a FOIA request could take months. It pays to put it in during the early stages of an investigation.”

Emshwiller concurs.

He once waited years for the FBI to answer a request about a closed investigation.

 “At first, I got a note from the FBI saying they were working on it,” he said. “Eight years later I got a letter in a packet from them saying they hope the delay didn’t cause any inconvenience. Attached were 35 blacked out pages, some with only a zip code.”

Emshwiller said sources can often provide information to help guide your request. The trick is to be specific enough to keep it manageable, but not so detailed that it allows the agency to cut things out. He also said there are many documents already public that reporters too often ignore.

Think of the subprime crisis. According to Emshwiller, some FOIA requests to public agencies analyzing the subprime market and default dangers would have been useful, but reporters also needed to look at other sources, at information already available.

“First thing is to see what’s public so you can see what to mine for,” Emshwiller said. “There is no use in digging for gold if you have a ton of gold sitting right next to you. Sometimes it’s just about reading a document that no one else has read.”

NEXT: How to Craft a FOIA Request

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Copyright © 2008 Donald W. Reynolds National Center for Business Journalism