How to Avoid a Public Records Request (A Government Primer)

Since the 1960s, so-called “sunshine laws” have helped to shine the light of public scrutiny into the dark corridors of government. Under state and federal law, any citizen can request documents that are made or kept by government agencies. Open records are vital to our government. They are an invaluable tool for keeping government officials accountable.

Unfortunately, that doesn’t stop government agencies from trying to get around the law and keep the public in the dark. Just this week, the U.S. Navy accidentally sent a reporter the Navy’s detailed strategy for stonewalling his public records request. The internal memo included several pending FOIA (Freedom of Information Act) requests. For each entry, Navy officials had written helpful advice to their public affairs officers:

I would recommend negotiating with the requester…Josh can help with crafting the language…

Recommend that you provide the requester with an estimate, as I can see the search and review, possible redactions, will be very costly. This may encourage the requester to “narrow the scope.”

This one is specific enough that we may be able to deny.

The sad thing is that this approach is all too common in government. Although public officials pay lip service to transparency, their actions show otherwise. Civitas files public records requests quite frequently, and it is the rare respondent who acts promptly and correctly in accordance with the law. There is an elaborate dance, which often features one or more of the following:

  • The runaround: Oh, sorry, this is the wrong place! You’ve got to talk to Jim in another department. What’s that? You already talked to him? He said to talk to us? Well, that’s just not true. Try talking to Jennifer.
  • The delay: Yes, we have received your request. Yes, it was sent three months ago. We are in contact with our public affairs people. They will advise us when it is completed.
  • The office lawyer: You asked me for every report from the past month. I interpreted your use of the word “every” to mean “some.” Perhaps you are unaware that this is an accepted definition?
  • The accountant: According to our calculations, the cost of responding to your request will be approximately $200,000. Where shall I send the bill?
  • The cricket: *Silence*

These tactics by government are frustrating, and intentionally so. When it comes to open records, sometimes government acts like a small child who would rather throw an hour-long tantrum rather than pick up a toy off the ground. But in the end, the response must always be the same as a parent’s: Be patient, and don’t let up until the child does what he is supposed to do.