Nate Jones Transcript: June 6, 2025
Kevin Johnson/NPF (00:00:00):
Nate is the FOIA director for the Washington Post where he works with reporters to obtain local, state and federal records, but most importantly, to think strategically about public records in all formats. He’s hosted FOIA training sessions and advises reporters and how to write, refine and track requests, navigate delays, and especially those over redactions, those volumes of blacked out pages that we get quite often and overcome the bureaucratic resistance. More than that, he is the author of the Revealing Records column, which describes the post battles for public records. He has served two terms on the Federal FOIA Advisory Committee and holds a JD from the University of District of Columbia. He was previously the director of the FOIA project for the National Security Archive, where he used FOIA to write a book on the 1983 Able Archer Nuclear War scare. So please join me in welcoming me.
Nate Jones/Washington Post (00:01:07):
Let’s see here. Can you raise your hand of anyone who here has filed a federal, state local public records request? Okay, we got some experts. All right, so I’ll maybe do the 2 0 1 spiel and if something’s not clear, any feel it’s good to ask a question in the moment, feel free to go ahead. Alright, so I’m going to splice this with all sorts of public records so that we won partially because it’s so hard to do when you get a victory, you got to shout from the rooftops and partially because something that I’m even still trying to resonate at the post, and I think you guys will get it a little bit more than the older reporters is public records are sexy. If you get a public record in reporting, get an image of that, splash it out there, show the readers under the hood what you’re looking at.
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Older reporters don’t really get that, but newer reporters and newer readers do so couldn’t help myself. I’m going to have a lot of public records in here. This is one of the funny, interesting and more profound records I’ve gotten a while. So the day after Osama Bin Laden was killed, the post a FOIA request for all photos of the day, and then we actually got this one after, and so Obama reading a printed out meme saying, sorry, it took so long to get a copy of my birth certificate, which is a scandal at the time I was too busy killing Osama Bin Laden and it’s funny, got a lot of clicks. The traffic people at the Post are very happy with it. But more importantly, this shows is a public record that we got through FOIA and the Presidential Records Act that shows an image of the government of Obama that actually happened that he did not show to the public at the time. So in fact, he said, we’re not spiking the football. They buried Salama bin Laden at sea very solemnly. You maybe remember the speech was very solemn, but behind closed doors he was laughing and high fiving looking at memes. Not necessarily anything wrong with that. Just insight into the power of public records. They show what’s going on that the administration does not show to the public. Let’s see here. So here’s what I’m going to talk about today.
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This sounds basic, but it’s not really very important. Find where to file, find the law, target your FOIAs. We’ll talk about emails. Everyone wants to talk about ’em. They are not my favorite type of request, but we’ll talk about ’em once today, how to do it as good as possible. I’ll talk about appeals a little bit and then talk about litigation just a little bit and then of course what you guys want to talk about. All right, so let’s see. I just backing up a little bit. This might be too basic, but I just want to make sure to cover it. There are federal foia, which is a federal law passed in 1966, most recently amended in 2016. That covers federal records requests that only covers the federal executive branch, so not the courts, not Congress. There are other ways to kind of get records from them.
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We’re not going to talk about that today, but the federal record is Department of State, department of Forestry, department of Transportation, CIA. Those federal agencies, you can request records from the president five years after they leave office. So there’s a lag. So the one I just showed of Obama, I filed that on five years in one day and we eventually got it. So where to start with federal foia, the most simple place is actually foia.gov. It’s a federal website that don’t give compliments to the feds a lot. That’s actually pretty good. It has all of the agency’s FOIA contacts. It lets you use a form to file, so it’s a good place to start depending on how you count. I think there’s around I think 102 federal agencies that are covered by foia, but for example, the Department of Defense is one of those, and under it is the Army, the Navy, the Marines, socom, all of those have different FOIA places.
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So depending on how you count, there’s either about a hundred agencies or closer to 400 components. All of those you can get to at least get started@foia.gov for federal law. There are many ways to do this, but what I would recommend as a starting point is the FOIA Wiki made by reporters committee for Freedom of the press. It’s just a very, very good Wikipedia page, although it’s not on Wikipedia, it’s on their server that has a lot of crowdsourced instruction on the law amendments. Good stuff is a great first starting point. Here’s another one I couldn’t help myself. This is Trump’s old White House chief of staff, John Kelly, an email released via FOIA in which he told his staff, FOIA is real and every day here in this cesspool, the CSPI pool being Washington dc. So the inference is that people that work in government are scared of foia, which means that that’s a tool that you guys should utilize.
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Alright, so state laws. So just when you start figuring out federal foia, which is pretty complicated, I’ll admit it. Well then every state has their own law. So there are 50 permutations. Some are kind of parallel to the federal FOIA like Washington DC a little bit. I guess that’s 51. Some are based off the Napoleonic code, a little bit like Louisiana. Some are called the Data Act and are really weird written in the seventies by hippies, Minnesota. So there are 50 different types, but there’s kind of a method to the madness when you’re starting to file a records request in a state. Again, go to our friends, the reporters committee, open government guide, and they have 50 different guides for 50 different states pretty much in all the same format. So it’s easy to read, easy to digest, and that should be a good enough starting point to get you filed.
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Typical federal FOIA request. This is what the Washington Post does, although I have to admit it could just be under open records laws I request and then a description. I would not worry too much about a flowery template. There are some template generators online. I don’t really have a problem with it. There’s Muck Rock online that generates the letters for you and files ’em for you as long as it works in the backend, which you do have to check. We’ll talk about it. Don’t have a problem with that. The bottom line is you just really need to say under public records law, I request blah, blah, blah and the blah, blah, blah is the important part.
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Just quickly want to note, this is about a hundred federal agencies. These are the sexy ones like the Department of States, C-I-A-F-B-I, and they’re very long wait lines, terrible wait lines. I have to tell my colleagues if they’re trying to request some department of state, the only way you have a chance is to litigate and we can talk about that later. But the point I want to show here is that there’s a silver lining. All of these agencies are actually within the federal deadline, which is 20 to 30 days. So the most popular agencies often are very tough to get records from federally, but there are tons of federal agencies that are quick. The simple saying is fish where other people aren’t fishing also, usually states are faster than federal, so we are trying to get some data on border crossings and border and customs protection kind of stonewalled us a little bit, the federal agency, but we requested the same thing from Texas.
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It was actually Texas legislature and got it within two or three days on the same stats. So fish where other people aren’t fishing, target your request. This is fun. The posts let me do a guide to foia, but I said, I’ve already read a bunch of these, they’re kind of boring. Let’s do it as a comic. So they let me do a comic about FOIA you can find online. So like I said, this is the blah blah blah part. That’s the most important part. The best FOIA requesters treat this like they treat their reporting. You don’t probably don’t want to file your FOIA request on day one of reporting. You probably want to report first and you want to be able to explain to the public records person in the agency who is not an expert there. If they don’t know very much at all, assume they know nothing but you need to tell them where to search, whose file cabinets to search, whose computer to search, what the names of the employees to search the precise location on a map to search. I’m joking a little bit, but the point is you need to tell the agency records people everything and you need to work it on the front end and in a perfect world, you would have sources in the agency help you craft your request.
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That said, that’s the bottom line is the most important part of FOIA is I am requesting blah, blah, blah, the blah blah, blah is the most important part. Some stray thoughts, records released to others are an easy request. Fast requests, you can get it quickly usually, and that one, the FOIA people know where they are, so don’t overlook that. Lots of times someone gets a big batch of a thousand pages of documents, does their headline and miss a lot of stuff Records released to others with a different timeline. So one of my big reporting wins was they released one applicate. I’ll show you in a little bit. One application to work for a foreign government, so it’s kind of messed up. If you are in the DOD and you retire, you’re allowed to pretty much secretly work for say Saudi Arabia. You just have to do a one page application that’s not public until one person Foy had one of them and got one.
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Then the post FOIA them and got 400 and had a big bad investigation telling the public, did you know that two national security advisors are working for Saudi Arabia now? But the point is you wave around one document that one person got and say, you released one form, 1, 2, 3, 4. I want every form 1, 2, 3, 4 filled out for the past five years. Replication is a great strategy record cited in footnotes. It’s gold because again, there is no question where the records are, the records people can’t but have to go find them if they’re cited in a footnote. In IG, reports have a lot of footnotes, GIO reports, which is not technically a federal agency, but nonetheless they have footnotes to a lot of federal records. Following the footnotes is a great strategy records using congressional testimony. I’m not going to talk about that too much just to say that when an agency testifies to Congress, they are not just winging it. Every fact they state is based on agency record briefings, similar IG investigations. I just mentioned that those are almost always rife with footnotes if they want to give you the documents is a different question, but it’s worth requesting.
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Databases are a great target. There have been a good FOIA court cases usually they’ve more often been going bad, but there was a very good ruling saying unequivocally that databases are public records. So that’s a good target. Federal contracts, we’ve had some good reporting on the post with those and state contracts actually now I remember I’m putting these kind of in order from what I like to what I don’t like. Everyone’s always doing. Secretary schedules, yeah, go for it. I think that’s not really that good a use of time, but you can do it. They’re foible and then the last emails, whatever you want but are really tricky to get and I’ll talk about them in a bit. Another example, this is what I just talked about. This was from the Afghanistan papers that Craig Whitlock and I did some reporting on. There actually is a big premier screaming screening of the movie of the Afghanistan paper is coming up.
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So if you’re interested in cool documentaries, look it up. Here’s Donald Rumsfeld, the DOD Secretary of Defense at the time, we’re never going to get the US military out of Afghanistan unless we take care to see there is something going on that will provide the stability that will be necessary for us to leave help. Donald Rumsfeld 2002, I was alive at the time. I saw all of his press briefings. He never said anything that candidly to the public, but in internal records to his colleagues, he was saying the truth in the briefings. He wasn’t saying the truth in my opinion. We got it through foia, brainstorming, FOIAs kind of in the front end. These are some good ideas to figure out what to do. Every federal agency has a FOIA reading room by law you can go and poke around there. Some are very good, some are very terrible, but it’s always a good idea to look and see what’s been released.
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There is a website called muck rock.com. Is anyone familiar with that? Raise your hand. So it’s a pretty cool website. One thing it does that I’m not going to talk very much about is it kind of automatically files the FOIAs for you, which sometimes it’s good. Sometimes it kind of goes into a black hole, which I’ll talk about later. So you got to be careful with that. But what I really love this site for is not that it’s for this what I’m going to talk about. You can go to any state or federal agency and select the agency and click show all requests and some agencies, thousands of requests will show up and you can do sort by date. You can do sort by successful or unsuccessful. Remember we just talked about replication. That’s a good way to see the success, the requests that worked and replicate them.
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You can search by keyword. This is one of my favorite places to brainstorm for requests. You can see what someone requested at one agency and then if it was successful then requested at the agency you’re going for. Take some time, poke around. It’s great illustration of requests that actually do and don’t work is fun. Finally, another thing that everyone’s talking about. FOIL logs. Foil logs, foil logs. Should I request the foil logs? All my colleagues are always saying this and I say no. It’s because it’s kind of a waste of time user energy to do a better, more targeted request about a document that will make news. Most of these foil logs anyways are available on muck rock and another site government attic, and the government weirdly fights you for that and you get tricked using your time fighting for foil logs when you really want other documents and they’re mostly already available.
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Anyways, this one’s a good one. This is the redaction. So someone requested all of the complaints from Amtrak and for some reason they redacted everything except for no snack car under personal. The exemption was personal privacy strangely. So in the FOIA nerd lore, this is a very famous redaction. There’s a less funny one where it was documents about torturing at Guantanamo Bay and it was just like this except it was the waterboard and everything else is redacted. So again, another point that I’ll get to later, but mention it now. If you get a wholly redacted document that has three words, that does not mean it’s a failure. Think creatively, like get your readers agitated. Say, can you believe the government justifies this secrecy of this? Or if it’s funny, do the snack car and even if they reject, they don’t give you any redactions, they just say everything’s denied.
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I plead with my colleagues at the post and I plead with you have a line saying in your reporting, the government denied a public information requests citing national security so your readers know that the government is maybe not following the law. And in a perfect world, maybe a senator a congressperson reads it and maybe changes the law to make it stronger. But cite your failures. Well cite the government’s failures is not your failure. Cite the government’s failures to release information more about the blah, blah, blah as specific as possible. Like I mentioned, imagine that the person at the agency knows nothing quickly speaking generally in the federal level, there’s a records office that is in charge with redacting and sending you all the correspondence. But a subject matter expert gets tasked, tasked gets sent a note saying, please give me the records to the FOIA people.
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And usually that’s the delay is the other people in the government ignore the FOIA office. So knowing that might give you a bit of advantage of breaking through that delay. But almost always the long delay is the if you request documents from the embassy and Baghdad, it’s the embassy and Baghdad that’s ignoring the FOIA people saying, please send this, please send this, please send this. And the FOIA office probably isn’t very aggressive either, but that’s usually the delay. Moving on, make sure the agency acknowledges this happens a lot more than I like. And with Muck rock too, you file the request like it says an introduction, oh, wipe my hands done. I’ll just kick back and wait until the documents come in. That’s a mistake. You need to make sure that the agency sends you an acknowledgement usually within three days. That’s my rule of thumb.
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A lot of requests that you send get lost by the agency. I’ll let you guys in on a little secret. Some of the FOIA people in state and federal government and especially now with the gutting with Doge are not the most competent people. You need to make sure that you get acknowledgement from the people that make sure that they say, oh yeah, we do have it. Here is your tracking number. It’s like a FedEx number. That’s gold tracking. I just use a basic Excel spreadsheet that says date filed, quick subject, the most important acknowledged on date tracking number. Then appeal to, yes, no, essentially I just mentioned this. Put yourself in the shoes of the record processor. Do your reporting on the front end. Mike Walker at New York Times, a great foyer guy uses that to tell the government person exactly where to look and what you’re going for.
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I said it before, but it’s worth repeating more. In general, a proactive requester is better than a reactor requester. So some of the best post requesters, Craig Whitlock, Steve Thompson, Jason Leopold, Ken Berstein, they are requesting documents constantly. Every day they file a FOIA and plant an acorn and then in a month it means that maybe every week you’re getting documents. So if you like foia, you can create your own news cycle. That’s the best way to do it. What’s less good is what often happens, you got to do it is that a news event happens and then your editor is crashing and says, we need to file FOIAs on this. You file, file file and then eventually when you get the documents back, the news has moved on. They’re not interested in doing a story about a couple documents you got over something that’s no longer viewed as big news.
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But if you make FOIA your beat, that happens less. So better to be proactive than reactive. File a FOIA Day plant Acorns very quickly. This is helpful, but I’ll just mention it very quickly. Foia, federal FOIA fees are confusing, but just remember this, a news media fee status, which you all qualify for is gold. The fee waiver, which you usually say, oh, fee waiver. Yeah, I’ll take a fee waiver. The law on that is much more murky. So it’s much more difficult to get a fee waiver. Err bad. You want news media fee status with that. If you just say, please give me news media fee status, you probably will never have to pay any federal FOIA fee. States are different. Lots of variants there, but federal news media fee status is gold. All right, am I doing all right on time? Yep. Good emails.
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What Nate doesn’t really love, although I request emails, but everyone wants to know. So essentially, so I don’t like emails for a couple of reasons. The biggest one is because the federal agencies and the courts have more and more and more come down on the side that most email content does not have to be released. It’s under the pre deliberative exemption of foia, which essentially means supposed to mean when someone says, I think we should do this because that should be redacted. So government employees can communicate, but agencies and courts have stretched it to include almost everything written in an email. It sucks, but it’s tough with federal emails. Some states are a little bit better, so don’t cut out with states, but federal, here’s how you request, but I’m telling you, you’re probably not going to get very much. This is the language that kind of courts have blessed West all emails sent to or from the email account from date X to date y mentioning the terms x, Y, that should actually say and or Z.
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I got to fix that and or Z because some agencies will really screw you and say, if you don’t have all three, it’s not responsive. Got to fix that. Sorry. One thing that’s worth noting is that at the federal level and usually the state level, you need to identify the email accounts to be searched. So you can’t say search all email accounts for Doge. That would be very overly broad, but you cannot do search all email accounts for X. You have to say, search the account of John Smith, Joe Smith, Jane Smith, Jack Smith for X. So you have to do your research. You have to know whose accounts that you’re going to tell ’em to search.
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Think a little bit about how you would search your own email because basically flip that around. That’s how you have to tell the IT people how to search the email. In the federal government and most state governments, it’s probably Microsoft Outlook, which is a little bit janky, but again, you have to tell the government how to conduct an Outlook search. My sweet spot is you probably want 100 to 200 emails, maximum absolute max 500 emails. If it’s more than that, it’s going to take forever. If it’s at the state level, your fees will be sky high. So the bottom line is if you’re doing emails, you want your search terms to be very tight like COVID or Doge or executive order way too broad of terms. You need to have something that will only bring up a few emails. So again, you want a small, very small quantity of responsive records for email searches.
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You can say, please admit all news articles and summaries of news. So a lot of times someone does an email search and I think you guys have seen this or will seen it, and I think they’re doing it just a mess with you. They say, the agency says 90% of your request is exempt, here’s the 10% that’s not exempt. And it’s the emails from reporters to the press office saying, can you tell me what happened about this? And sometimes reporters kind of make asses on themselves and promise to keep things off the record. Or the agency says, will you please write this? And they say yes. And those often come not rarely come out via FOIA where other stuff. So just saying also, every principle gets a summary every day, sometimes three of them of news clips and a lot of times you do this email and you get the documents and it’s just these summaries, it’s all they release. It’s frustrating. That’s why I don’t like doing emails.
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I’m not going to go through this, but essentially the bottom, I’m not going to read everything, but in my email I have maybe one out of 10 or one out of 20 emails is good and the rest are junk. One way that I know that an email might be important is if I replied to it, so this is essentially trying to limit the number of emails to only emails that the person replied to. Does that make sense? The thinking being, if there’s so much junk out there, if someone replies to an email, it’s probably more important. So that’s some complicated language that I’m not going to tongue twist myself on to read. All right, so I’m talking briefly about appealing and then about litigation. Before that, I just want to say, I might should have said earlier, so you do the FOIA request and under federal law, the agency can only withhold records if it cites an exemption which is part of the law.
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So there are nine exemptions. Exemption one is national security exemption. Five is the deliberate process that we talked about. Exemption six is privacy exemption seven is law enforcement. So those are all pretty straightforward. And then there’s weird exemptions too. And then there’s also exemption three, which says that Congress at any time can pass a law to exempt something, and if you go back and compile all of those, there’s something like 400 exemptions that Congress just sneaks through and sucks. So you got to know about them. One of ’em was information about watermelon Technology is exempt from foia, but the federal level, that’s what the FOIA wiki will show you is these exemptions. So that’s how the agency withholds states for the most part are pretty similar. They have to cite an exemption and a lot of times they try and stretch it. That’s why we appeal and maybe litigate.
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This is representative. It’s a little bit dated, but nonetheless, of all of federal FOIA requests only about 2%. Only about 2% were appealed, but within that 2%, about a third of the time, more information was released. So glass half full, glass half empty. You could say, oh, the appeal system works. People are willing to take a second look. Or you could say, wow, look at the amount of information that was wrongly withheld and left off the table because someone didn’t just file an appeal, which my point is is just a simple letter. You don’t need lawyers. You can do the appeal even if you just say, I think this is wrong, would you please take another look? It’s worth it because another higher up person in the federal government will have to sign their name and say, I read this appeal and I am signing my name, which is a big thing in the federal government that this information should be withheld. It’s usually a more senior person and subjectively it’s usually a more rational person maybe. Anyways, always appeal. How do you appeal? This is fun. How do you appeal? I would start by just taking a look at the FOIA wiki on muck rock.com. You can see some appeals.
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If you just do Google the agency FOIA appeal, some stuff will come up, but it’s pretty straightforward. Basically you just go point by point by point, they’re going to say, we withheld it under exemption one, five and seven and you would say Exemption one shouldn’t apply because blah, blah, blah. Cribit from the FOIA Wiki exemption five shouldn’t apply because of blah, blah, blah. Cribit from the FOIA Wiki exemption seven shouldn’t apply because blah, blah, blah. Cribit from the FOIA wiki, you might get lucky like this. This is what I was talking about about foreign government employment. So Obama’s national security advisor, Jim Jones, worked for, I am pretty positive. Saudi Arabia and the agency got us a lot of stuff we could do good reporting, but right here, salary was exempted under exemption six. Personal privacy. Well, we made the argument that public interest of knowing about what a former national security advisor working for Saudi Arabia who’s a public figure far outweighs any privacy he has in not saying how much he makes, and they agreed forces to release it. 40 to $60,000 a month working for Saudi Arabia. Not shabby, eh.
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Let’s see more about appeals At the federal level, you can appeal any adverse determination. So if they say this is important, because if they say your record wasn’t reasonably described, you can appeal that. Probably the most important is no records. You can appeal that. Again, think of the records person that doesn’t know anything that another dirty secret. They love denying requests without doing work. So they’ll say there are no responsive records. Phew, we don’t have to review any records. We don’t have to waste our time redacting. That takes a long time. I don’t like reading hundreds of pages. Okay, they do that. You can appeal, you should appeal the language for that’s on the FOIA Wiki delays, you can appeal. So if they go over their deadline, you can appeal that. It helps a little bit because another agency will push ’em around, but it’s not a silver bullet.
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Redactions denials, we just talked about that. Fee determinations. If you mess up and forget to say what news media fee status and you mess up and you forget to say that and they give you a $500 quote, you can say, no, I’m news media fee status. You can do that in appeal expedited processing. Also, I’ll go into that maybe later if we have time. Again, publicize your denials. If the agency is saying that the public doesn’t have the right to know something and your gut says that the public should, you’re probably right. The agency’s probably wrong, the law is probably wrong or they overstretch the law. So include a line saying a public records request for this was denied.
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Alright, so this is what I was talking about about expedited processing. So at the federal level, one of the biggest problems is delays. So this is a crib sheet about delays. So if you can say that the request needs to be expedited because it’s incredibly important for knowing right now, basically that’s great. The federal government almost never grants this, so it’s almost a last cause. What they do give a lot is this simple processing queue. That means that your request is pretty simple and that means that you have a pretty good chance of getting it quickly where you don’t want to be and where all email requests automatically go is another reason I don’t love them is the complex queue. Those in some agencies remember the chart can take years. Some agencies, they are kind of fast, but they’re still slower than simple. So if you are in the complex queue, my advice to you would be to call whatever contact you have processing their request and say, please, please, please, what can I do to get in the simple queue? Should I limit it to the first a hundred pages? Should I, how can I change my request? Please help me get into the simple queue. Sometimes they will, sometimes they won’t. But you do not want to be in the complex queue.
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The only way to get out of the complex queue is to file a lawsuit, which I’ll talk about in a little bit. So I know that you guys are starting out, but the bottom line is don’t be super duper afraid of foil litigation. Lots of people do it one, often it’s the only way to get the records either due to delays like I just talked about or due to redactions. Often agencies are bullies. They say, yeah, we know we’re stretching the law to redact this, but we don’t want to embarrass ourselves, so we’re going to do it. And the only thing you can do requester is if you want to sue us and you should and a judge if that is what happened will rule for you in your paper. The last most important thing is just know this to mention to your editor is in federal FOIA and most states, if you prevail, the agency will pay some or all of your attorney’s fees. So there are some lawyers that do this stuff for really cheap, almost on spec because that’s what they’re doing. They know that they might get fees or you go, yeah, so that’s an option. There are more traditional firms that don’t do it on spec, but we will get their fees paid for by you. Sometimes it’s only 50 cents on the dollar, but again, it’s just worth bringing up with your editor that litigation is normal, it should happen more and you can get the fees paid.
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All right, so that’s me done blabbing at you and we’re talking about what you guys want to talk about. Do your reporting on the FOIA like you do your reporting, find where to file, find the law, make your request as clearly as possible, as great as targeted as possible for the person in the agency. That’s probably the most important thing in FOIA is again, the I’m requesting blah, blah, blah, make your blah, blah, blah gold emails. I don’t love ’em. Appealing litigation. Don’t be so afraid of it. Make the case. A lot of reporters are too afraid of these agencies. FOIA is a battle and you got to fight and you got to be willing to use litigation. Last one, this is a state department transcript and I mentioned before a state it’s hard to get records from, so I’m proud of this, of Henry Kissinger from old 1975. He was meeting with Turks who are trying to get him to illegally send weapons and his aide says that’s illegal. Kissinger says Before the Freedom of Information Act. I used to say at meetings, the illegal we do immediately, the unconstitutional takes a little longer or after, but since the Freedom of Information Act, I’m afraid to say things like that We’ll make a major effort to sell the weapons. And of course we got this via foia.
Michael Williams | CNN (00:36:19):
Hey there, my name is Michael, I’m with CNN. Thanks for doing this. So say you request somebody’s emails, is that person notified that there’s a FOIA request about their emails? And if so, is it up to them to produce it? Because sort of wondering if they’re like, oh, that looks kind of embarrassing, I’m just not going to send this along. How does that work?
Nate Jones/Washington Post (00:36:51):
Probably not, although not definitively so at the federal level probably goes to the agency’s IT team that pulls the emails and doesn’t notify them probably because there’s not any hard and fast regulations, but that’s just the process at the state levels. There have been some weird things where person in state agencies tend to be smaller, so they ask ’em to search the records and they maybe don’t do a good search or forget to send up the embarrassing email to the FOIA people. There had been a couple of times of that happening, but that said, in general, the person does not know it is not life or death. If you’re going to blow a source, I’d think twice about it, but in general, the emails are pulled without knowledge of the employee.
Michael Williams | CNN (00:37:40):
Thank you.
Nate Jones/Washington Post (00:37:41):
Yep.
Nik Popli | TIME Magazine (00:37:46):
Hi Nik Popli with Time Magazine. You mentioned using FOIA to look at government communications. We know that this administration has been using Signal to communicate with each other. I’m curious your experience trying to access those messages, have they been successful and anything you speak to on that?
Nate Jones/Washington Post (00:38:08):
Yeah, we are awaiting a big DC court case. The Washington Post is about Muriel Bowser also using WhatsApp and deleting her messages too. So it’s a big problem everywhere. So under federal law, there’s the Federal Records Act, which is different than fo. It’s a different law, but that says that you are not supposed to use Signal, you must have a copy of all your communications and records. A court last administration with Trump said that last time they were using Signal and they signed a consent degree saying that they would be trained and wouldn’t use Signal, and this time it appears that they’re flouting that or forgot that. I think there is other things working in court. So I think something like that’s going to happen. But the bottom line is if someone’s using Signal, you’re not going to get the records under foia. You could say like a language being like according to news reports, John Smith uses Signal, please be sure to search his signal account or when just kind of for fun, when the Signal thing happened with Department of Defense and all of the agencies, they named about seven people in the agencies.
(00:39:18):
I filed a FOIA to all seven of those agencies just to see what happens. Nothing back yet really. But it is possible that someone could use Signal and follow the law. They use Signal and then they preserve the records as required by the Federal Record Act and there’s a foia, they will produce them. So it’s very possible. I’d be surprised if that happens, but it sucks. Fortunately, good government groups are suing the federal government to try and get a court to enjoin the agencies to make them stop doing that. But if someone uses Signal, you’re not going to get the record. It’s not the end of the world because if someone sends an email and you’ll see this that says, call me, you’re not going to get what they do on the conversation. So it bothers me, but I would say it’s not the end of the world.
Audrey Decker | Defense One (00:40:10):
Hi, Audrey Decker with Defense one. I covered the DOD and I’ve only sent a few FOIL requests before, but I was just wondering if you had any experience specifically with the DOD because every single one I have sent is has been denied and they always list national security reasons and I’m sure there are just some things that we can’t get around, but are there ways to phrase them specifically to get that sort of information?
Nate Jones/Washington Post (00:40:36):
Yeah, DOD is tough and also kudos to you for actually getting denials. Most of mine, I’d have to wait eight years. I would a couple of thoughts. One, go to Muck Rock and go to DOD of the components and see what works and see what you can replicate. That’s probably the best advice. Two go for completed reports. It’s more difficult. I should have had this out there. It’s more difficult to withhold a completed report or an after action report or a report about an event that is done. So a lot of the great DOD documents that the Post has got has been those. So maybe try your best to compile a list, a running list of those by sometimes you hear about ’em in congressional testimony or other ways. And then finally think about not going for Office of the Secretary of Defense or Office of the Secretary of the Army. Try and find some of those. I think there’s 400 components of DOD, so maybe try your luck at some of the other components. You can maybe find out some of those through Muck Rock or even foia.gov. I think DOD lists all the components and maybe a lot better luck with smaller, but it’s tough. I mean, no one said FOIA is easy. It just feels great when you get that manila envelope.
Skylar Woodhouse | Bloomberg News (00:41:59):
Hi, Skyler Woodhouse with Bloomberg News. Really two questions. One, with the current administration, especially disco around with them being a little bit more forceful, are you expecting them to maybe come after foia? I mean, it seems like, so yeah, I was curious your loss there. And then secondly, the MAHA report that came out Make America Health Vegan report that came out a few weeks ago, spent a lot of speculation that it was altered. And then this past week for myself, I’m on the White House team, but I have agriculture in my portfolio, a trade report that they were supposed to put out quarterly. They scaled back on what they were actually supposed to have in the report. So I’m just curious your thoughts on sort of going about reports that I guess how do you track things that are being altered before publication and then the final report that is stripped of its usual findings? Yeah,
Nate Jones/Washington Post (00:43:04):
Let’s see. I got you. Am I worried about the Trump administration destroying FOIA? A little bit, but not that much. It’s a federal statute. It’s the law there right now are hundreds of FOIA litigations and federal court right now people are used to suing under foia. So if the agency breaks the law, you have the right to sue. And if Trump says, stop answering FOIAs, that means that you have the right to sue and the judge will say, I order you agency to produce the record pursuant to foia. So unless that stops, which I don’t see it happening, might have bigger problems If judges stop telling agencies follow the law, I don’t see it happening.
(00:43:52):
I have written articles before saying, FOIAs, the last bastion of bipartisanship, like when the law was last amended, it was amended unanimously in both houses and had co-ed Republican, democratic co-sponsors that didn’t believe in anything else. So Congress I don’t think will weaken foia. I think Congress is proud of foia. The more dangerous risk that we’re seeing, that’s certainly a risk is there’ve been reports that in a lot of agencies, not all of them, but in we know of I think about a dozen, that their FOIA staff was cut by half. So that definitely is going to be more delays. It’s going to mean the bad news is if people don’t litigate, they’re going to have to wait in line forever. So that’s the most pressing, biggest threat on tracking reports. This damn exemption five that I mentioned before, the predecisional exemption has been expanded to really, really, really protect the drafting of reports.
(00:44:50):
So it’s going to be hard to get an email saying, let’s cut this report by 150 pages or an email saying, it looks to me like Footnote 3 94 is a made up source. Can someone double check that? That probably by their wisdom is exempt from FOIA due to judge’s interpretation of exemption five. So I guess my plea would be get your reporting, get your traditional reporting, get the source to tell you what happened or to share some records with you. Then add a line saying, I requested this under foia, but under the current law you don’t have the right to know if this person said don’t make a footnotes or something like that. But it’s tricky due to this damn exemption five predecisional exemption.
Sophie Hills | The Christian Science Monitor (00:45:34):
Thanks for doing this. So again with the Christian Science Monitor. I wonder, this is kind of a basic question, but I’m wondering if you have any advice about figuring out what kind of how to narrow your request? Because the only time I’ve ever gotten something back from a request, it just sort of fell into my lap that I knew exactly. I knew the document existed, but I more often feel like I’m sort of fishing a little bit. I know the topic area and I noticed the comic don’t go on fishing expeditions. But the Kissinger transcript, what do you ask for? You don’t probably know unless someone said leaked that that happened.
Nate Jones/Washington Post (00:46:16):
Well, so that one that was at my old work, which is the National Security advisor that did FOIA for important historic records. So that one, the thinking is any record, any meeting that Kissinger ever took is important. If you’re talking with Turkey, you’re talking about Soviet Union talking about everything. So that one, we requested all Secretary of State to minister of state meetings and we did have to litigate, but then got all of those. So that’s that one. I mean, I think you’re on the right track. I mean, the answer is that the best requests are for specific documents. So spend your time just keeping an eagle eye for specific documents. And I wouldn’t worry, I wouldn’t worry too much about fishing expeditions, I just wouldn’t do it. If you don’t have a really targeted request, I probably wouldn’t file it. So like an example, I was just reading Twitter and there was a case on deportations, and in the case the Trump administration lawyer cited a finding from the office of the ODNI, office of National Security Department, getting that wrong Tulsa Gabbard saying that they found that Venezuelans were a national security threat.
(00:47:37):
So they just cited it, didn’t see the documents, they did a FOIA for it, targeted foia, boom, target, see what happens. That’s all we’re going for. And it was released weeks later and it said the opposite of what they represented to court. So it’s big news, but it all started with just saying like, oh, I’ll read a court filing. Oh, they mentioned a document documents in the footnote, that’s a filing. If I had done been like, oh, give me all records about TDR, this Venezuelan gang that you have in your possession never would’ve gotten that. So I wouldn’t worry too much about the second, what I just talked about. I would worry focus your efforts on talking to sources, just reading, reading, reading and finding the specifics.
Mia McCarthy | Politico (00:48:22):
Hi, my name is Mia McCarthy. I’m with Politico. I cover Congress. So I’m curious your thoughts on, I feel like I’ve heard of people thinking outside of the box and getting stuff on Congress through foia, but again, it’s a little less direct. So I’m curious your ideas on thinking outside of the box to get good information or maybe ways you’ve gone about things non-traditionally to get information generally.
Nate Jones/Washington Post (00:48:47):
So it’s not easy and they don’t like doing this, but the law is now clear that if Congress, anyone in the office emails to or from an agency and someone requests it from that agency, those are agency records under FOIA and you at least have a shot at getting them. Again, they’re probably going to be emailed, so they’re going to be redacted, but that’s one method that courts have finally blessed. That’s the biggest one. Other than that, I would just note that there are a few institutions run by Congress, like the government accountability office that is not subject to FOIA because it’s Congress, but it has a FOIA like process. So I would use the heck out of that. Smithsonian is the same. They’re Congress. They’re not covered by foia, but they have a FOIA like process, and they basically say, yeah, but those are worth using. That’s pretty much it. Every once in a while people say, we need to use our efforts to amend foia, get FOIA to cover Congress in the courts. I don’t think that’s a good use of time. Congress is never going to do that to themselves, so we should instead use our bandwidth to get them to limit exemption five. That’s not really a joke, I mean, but Congress is tough. Yeah.
Shrai Popat | PBS NewsHour (00:50:12):
Thanks so much for doing this. I’m Shrai with PBS NewsHour, I had a question about Foing audio and visual, so particularly body cam footage, any other sort of surveillance footage as well that could come under that pur of view? I’m just wondering your experience with that. Is that more of a state sort of situation and Yeah, just any experiences you had getting those?
Nate Jones/Washington Post (00:50:32):
Yeah, good question. Great targets. The bottom line is that it’s much easier to get from the states. You can get it in theory under federal foia, but it’s going to be a fight. They’re going to use this law enforcement exemption quite a bit. States much less, but that’s very much a patchwork. There’s a couple of good websites. One of them, I think, reporters committee for Freedom of the Press and the other, it might be the Marshall Foundation of just the smattering of laws of body cam footage, and it’s pretty strange. Most of the state FOIA is like Michigan, here’s the law, but this is broken down by township to township, so different cities have different law. So I would look into that and that’s the best way to get body cam footage. One issue that you just have in the back of your mind is agencies have started to do what I call fee bullying on that, where state agencies will say, yeah, we had to give it to you, but it’ll be 80 hours. You’re going to pay thousands of dollars. There’s ways to push back about that central saying, this company says brags that they can do it quickly or calling them up or maybe talking to your papers counsel, but that’s just an obstacle that might happen. But great targets under state, much state law, it is good. So you can post as proud to have used these videos to spice up the reporting with visuals. Sorry,
Shrai Popat | PBS NewsHour (00:52:07):
Just one quick follow up about that. When it comes to audio as well, when it comes to first responder calls and things like that, how does that work? Obviously, considering that some of those things aren’t managed by the state, for example.
Nate Jones/Washington Post (00:52:17):
Yeah, good question. Bottom line is a very good target. It’s state by state. So the open government guide from reporters committee that I talked about before is better on 9 1 1 calls than it’s a little bit outdated on the video calls, but if your state requires the release of the calls, which is maybe 50 50, 50, do 50 don’t, DC doesn’t. Virginia I think does Maryland, I think does just as example then this is a good target. This is why, because for whatever reason, the most states and police departments contract out to a contractor to do it, and they’re actually very fast. So they’re, I’ll say, more competent than normal FOIA requests, and you have a good shot of getting it quickly. Some video is like that too. Some they’ll fight you tooth and nail, but in general, if you get the 9 1 1 calls or police body cam, if it goes to a contractor, the state pays. They’re usually pretty quick at getting it to you. So that’s something to keep in the back of your mind.
Nicholas Anastácio | National Journal and Hotline (00:53:22):
Hi, Nicholas Anastácio from National Journal. I primarily cover senate campaigns, so I’m sort of in the stage where I kind of want to understand these candidates and look into foing into them if they’ve held a federal position or a state position. What are some of the good documents or searches when it comes to vetting candidates in their communications or anything?
Nate Jones/Washington Post (00:53:43):
Yeah, let’s see. One of a good foia, smart guy named Alan Blustein might be a good guy to talk about this. He does this for, he’s talked about him doing this before. I think well, don’t forget about military service. The service files is probably should be released to some extent. Calendars, votes, which are public if they’re in state or mayor or something like that, those are open meeting laws, which are similar to public records laws, but not quite. You want to scour those and see if they made an ass of themselves in a meeting or see if they voted for something that they now are against or did a flip flop.
(00:54:27):
You can do emails when they’re in office. A couple of things to keep in mind. Like I said, maybe you’re can only have one or two shots. So make sure that it’s the best and again, aim for a hundred or 200 emails because other than that, it’s going to be overwhelming. Some other, if something pops into my head, I’ll let you know, but I think just basically you’re on the right track. Just kind of standard. How did this person interact with state or federal government and is there a record? And then going for that record.
Grant Schwab | The Detroit News (00:55:08):
Hey, Nate. Thanks for doing this. Grant Schwab with the Detroit News.
Nate Jones/Washington Post (00:55:10):
Sorry, I had another idea. Yeah, go for it. I’m going for that. Most of the time, if you are doing state records on calls for service, you just need to give an address. So if you can get your candidate’s address or addresses and say, please give me a log of all calls for service for the past 10 years. You can see if a police or an ambulance or something was going to his house. That’s turned up some stuff before. Thanks.
Grant Schwab | The Detroit News (00:55:38):
Yeah. So I’m Grant Schwab with the Detroit News, so I mostly cover the auto industry here in Washington and the Detroit three, which are private businesses, not subject to the same kind of foy the federal government is. I was wondering if you had any stories or practical advice on how you or colleagues of yours have used FOIA to get at businesses and how they interact with the federal government?
Nate Jones/Washington Post (00:56:04):
We have at the post and continue to do, continues to be a target look into the agencies or the automakers reporting requirements. So the safe nitsa requires them to report a lot of stuff. Once that is in NI’s hands, that is a record that is foible. Now, they might claim Exemption four, which is the confidential business information, but that’s a fight. The FOIA process will start. So not just nitsa look at all oversight agencies because if companies are required to give information, you can get it through foia. Other thing, just in general, if a company lists itself on the stock market, you guys might know this, but if you don’t, it’s very helpful. They have to file with the SEC and that filing that report, they pretty much are naked. They have to disclose business strategy, accounts receivable. There’s like 500 page report. That’s pretty much not redacted. So try and get it not through foia. I think you can get a most online, but if this company goes public, that’s the most you’re ever going to see about any company. So that’s a good starting point too.
Linley Sanders | The Associated Press (00:57:16):
Hi, my name’s Linley Sanders and I’m with the ap. I was curious if you could talk a little bit more about the database idea that you had on the PowerPoint. I work with polls and surveys and more data and less so with federal agencies. So I was kind of curious about how the database querying has been interesting for you guys.
Nate Jones/Washington Post (00:57:35):
Yeah, so a database can range from an Excel thing with 10 columns and 10 rows to terabytes, and the bottom line is that courts have, like I said, given kind of opinions against the agencies saying that doesn’t matter. Data is a record subject to foia, so where does that leave us? That leaves you probably to do the gum shoe reporting to figure out what databases agencies have that could be good for you. So talking with sources, keeping an eye on congressional testimony, maybe if there’s statistics that you can kind of work backwards and say that has to have come from a database under Obama that’s kind of withered on the vine. Obama said that every agency had to post a blueprint, so check those out and they’ll be dated. But that will give you a glimpse of databases that existed in every agency in theory like 20 years ago. Check out muck rock.com and search for database and see what pops up. Talk to your sources and say, I really want a database. Can you recommend one? But yeah, they tend to be harder to find, and maybe you’ll find one in a footnote, probably not. But it’s worth noting that that’s one thing that the courts have kind of put in the requester’s favor.
Linley Sanders | The Associated Press (00:59:10):
Thank you.
Kevin Johnson/NPF (00:59:12):
Just one quick question. You mentioned staff cuts and how that will likely affect things. Have you seen any evidence of that yet, or knocking at the door and nobody’s home?
Nate Jones/Washington Post (00:59:23):
Just a little bit. Again, most of the places that had the staff cuts, if you remember my graph of the, it kind of looked like this and it had the bad agencies. One of those was HHS that had the cuts. So most of the cuts have come to agencies that were already slow. So that’s the reason that I’m not quite here on fire, although I do find it very worrying and that my thinking is that it’s always bad to cut FOIA people. But when these offices were full eight months ago, they were incredibly inefficient then too. So my line is rehire the people and then retrain them and redo things and start being inefficient when the offices were full. FOIA was terrible. So by replacing hiring the people back, let’s get it to better than terrible.
Kevin Johnson/NPF (01:00:16):
Don’t say that too loudly. Yeah, no, I’m just kidding. No, thank you so much for doing this. We really, really appreciate it.
Nate Jones/Washington Post (01:00:23):
I should say terrible at some agencies, like my main point.
Kevin Johnson/NPF (01:00:27):
No, just totally kidding. Thank you so much, Nate.
Nate Jones/Washington Post (01:00:30):
Pleasure of mine. Appreciate it. Yep.
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