FOIA: What matters?

Knowledge of the law or tactics ?

Lecture by Roger VleugelsDutch-based lecturer and legal advisor, specialised in FOIA

Academic version of my introduction into FOIA tactics

Before talking FOIA .....

- Some remarks on journalism

on investigative journalism

on working with an own agenda

on true independent journalism

- But first a bit about me and my work

Lecturer / Legal advisor / Analyst

- [Guest] Lecturer- In colleges and universities- In company [for instance at the editorial board of a newspaper]- In NL, but also for students from several European countries, and for instance countries like Turkey, Iran, Belgium and Aruba- Topics

- Journalism basics- Investigative journalism- FOIA

- Legal Advisor- 2500+ FOIA requests- Most of my FOIA clients are mainstream press organisations

My clients within the press & more

for instance- Public national rtv NOS-journal / Zembla / NOVA / Argos / Reporter- Public regional rtv L1 / ATV- Commercial rtv RTL News / SBS- National newspapers Trouw / AD / NRC- Regional newspapers De Limburger / De Gelderlander / BN-De Stem- Weekly Re.Public / De Groene Amsterdammer- Others GPD

- Trade unions NVJ / FNV- Environmental NGOs Milieudefensie / FANAPA- Individual researchers- Private persons

Not only transparency

- My work for the press and journalism students focuses on transparency- In other words: focuses on tools and techniques

- The other half of my work is on content: the climax of non transparency- I am a forensic intelligence researcher and analyst- My clients for this part of my consultancy are mainly: journalists, lawyers, members of parliament, intel

researchers

- Publisher/Editor of Fringe Intelligence and Fringe Spitting- Two international specialist biweekly email journals - One focusing on intelligence services; one on FOIA

Some observations on BulgariaI have this year lectured on FOIA tactics in 14 Bulgarian cities

- From Blagoevgrad to Ruse, from Montana to Sumen

- For acting journalists from regional and local media, but also for instance for journalists of Trut or 24 Hours and tomorrow I give an in company training at Idealist.

- I see several basic problems in Bulgarian journalism.Problems that I have to address now because together they are a negative precondition for a successful use of the FOIA

Basic problems- The press and journalists themselves have far too less an own agenda- A too large part of the articles and items are the result of reacting on

government provided or guided information.

- A watchdog has to have an own - agenda [for instance a pro-active one]- news selection- newsgathering

- What about an true ambition level? What about being a real watchdog?

- The press is, pure objectively seen, in a too large part of their activities functioning as an extension of communication and pr officers

Basic problems – or – Solutions?Of course I know the problems [they are broader than Bulgaria]:

- Input overkill

- The myth and dominance of Need-to-Publish topics

- Being understaffed

In my opinion it is all about attitude, state of mind and ambition It is all about…… wanting to be an independend watchdog

- ant to be less depending on government guided information

- Want to publish to a certain extend articles based on - own search- own research- own newsgathering

Basic solution or at least a contribution to a solution?

- For those who want an own agenda, own newsgathering

- For those who have the ambition level of a true watchdog

For those……

the FOIA can be a toola powerfull tool

- ant to be less depending on government guided information

- Want to publish to a certain extend articles based on - own search- own research- own newsgathering

The Dutch parliament = Het Binnenhof

The office of the PM = Het Torentje

The entrance of the parliament complex

First parliament session = De Ridderzaal

An extended and old complex

A view on several of the Ministries

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Decisive to become a good FOIA requester is:

Tactics

Good knowledge of the FOIA law itself and oflitigation is needed but just basic, it is all about ...

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TacticsThe enlargement plans of Schiphol Airport

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TacticsThe enlargement plans of Schiphol AirportTactical aspect: choose the weak service

History and Context -1- The Dutch FOIA came into power in May 1980- First ten years almost no use [less than 500 in 10 years time]- In the early nineties something new happened:

For the first time in Dutch history watchdogs like the press, ngo’s and the parliament started to control the government seriously

Results were:- Parliamentary inquiries [in 10 years more than in the 150 previous

years]- A new job in the press: investigative journalists- And as a result of al this: more FOIA requests

History and Context - 2- 86 countries do have a FOIA- NL was the 8th one worldwide- Since the mid nineties we have about 1000 FOIA requests a year- In NL 80 % of all FOIA requests is filed by journalists, the rest by mostly by

researchers, only a few by NGOs or private personsIn Bulgaria this is different; most requests are filed by private persons, second the press, third NGOs

- The non-users in NL say: We have our own channels to get informationThat is almost always a very poor opinionIn my view this opinion generates:

- Government guided transparencyWe need something completely different:

- Civil society guided transparency

History and Context - 3- The problem with the - I have my own channels - thing is that it causes

government guided transparency, meaning that the government has an unacceptable influence on your choice of

- Topics- Investigations / how many layers / how deep / which direction- Tone

- Of course every journalist is entitled to have contact within the apparatus; every journalist must have them, but government guided transparency is almost always:

- Incomplete- Serving a purpose- A sexed-up version of the truth [including data and statistics]

History and Context - 4country size number of requests yearly

- NL 1 x NL 1,000

[written requests on national/federal level [ministries and national bodies]]

History and Context - 4country size number of requests yearly

- NL 1 x NL 1,000- UK 4 x NL 35,000

[written requests on national/federal level [ministries and national bodies]]

History and Context - 4country size number of requests yearly

- NL 1 x NL 1,000- UK 4 x NL 35,000- US 20 x NL 1,500,000

[written requests on national/federal level [ministries and national bodies]]

History and Context - 4country size number of requests yearly

- NL 1 x NL 1,000- UK 4 x NL 35,000- US 20 x NL 1,500,000- Bulgaria 0,5 x NL 13,000

[written requests on national/federal level [ministries and national bodies]]

History and Context - 4country size number of requests yearly

- NL 1 x NL 1,000- UK 4 x NL 35,000- US 20 x NL 1,500,000- Bulgaria 0,5 x NL 13,000

- Germany 5 x NL 1,200- France 3 x NL < 20- Belgium 0,8 x NL < 20

[written requests on national/federal level [ministries and national bodies]]

Goals, Results and Impact - 1- The success rate

- In NL the success rate after filing a request is 25 %

Goals, Results and Impact - 1-

The success rate

- In NL the success rate after filing a request is 25 %- After an administrative appael the success rate rises to 45%

Goals, Results and Impact - 1-

The success rate

- In NL the success rate after filing a request is 25 %- After an administrative appael the success rate rises to 45%- After a court appael in rises again 65%

Goals, Results and Impact - 1-

The success rate

- In NL the success rate after filing a request is 25 %- After an administrative appael the success rate rises to 45%- After a court appael in rises again 65%- After a high court appael [at the Raad van State] …… 75%

So appaeling makes sence but costs time.- A request 28 days = 2 month- An administrative appael 3 month- A court appael 1 year- A high court appael 1 year

Goals, Results and Impact - 2- Be tactical in choosing topics for and in formulating of a FOIA requests

Some examples:

- Police corruption

- Request 1 – The amount of kilograms confiscated

Goals, Results and Impact - 2- Be tactical in choosing topics for and in formulating of a FOIA requests

Some examples:

- Police corruption

- Request 1 – The amount of kilograms confiscated- Request 2 – The amount of kilograms distroyed

Goals, Results and Impact - 2- Be tactical in choosing topics for and in formulating of a FOIA requests

Some examples:

- Police corruption

- Request 1 – The amount of kilograms confiscated- Request 2 – The amount of kilograms distroyed

- The difference …….. 200 million Euro’s

Tactical aspect: Be creative

Goals, Results and Impact - 2- Be tactical in choosing topics for and in formulating of a FOIA requests

Another example:

- The Hercules plane crashInterrogation minutes + names

Goals, Results and Impact - 2- Be tactical in choosing topics for and in formulating of a FOIA requests

Another example:

- The Hercules plane crashInterrogation minutes + names

subsidiairyInterrogation minutes - names

Tactical aspect: Choose between integral or partial access

Goals, Results and Impact - 2- Be tactical in choosing topics for and in formulating of a FOIA requests

A Royal example:

- The maintenance costs of the Royal Yaught: The Green DragonNobody ever dared to file a request on anything related to the Queen

RTL News did [one of the two mainstream TV News programs [private]And what occured…… corruption not by the queen but by civil servants who thought that nobody ever would controll financial documents related to the Queen

Tactical aspect: Walk on unknown roads

Tactical aspect: Choose between integral or partial access

Goals, Results and Impact - 2- Be creative some examples of Dutch articles based on FOIA requests:

- Plans for a parking in a parc- Fees of external consultants- Reconstructing a shopping mall- Finances of a play ground- Football ticket corruption- Collapse of an appartment building- Quality of a child daycare center- Balcony repair report- Conflict in a fire department- Infections in a hospital- Deadly incident in a factory

Goals, Results and Impact - 3- The right to reconstruct government policy

- The right to monitor where tax payers money is going to

- The right of extra-parliamentary control next to parliamentary control

- Transparancy

- Living democracy

- The FOIA is NOT an anti-corruption tool, it is NOT a policing tool,it is just an investigative reconstruction tool

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Questions?

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Questions?

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Questions?

Law – Tactics

Of course knowledge of the law, of litigation and of jurisprudence is important

Law – Tactics

Of course knowledge of the law, of litigation and of jurisprudence is important, but that is only basic and necessary

Law – Tactics

Of course knowledge of the law, of litigation and of jurisprudence is important, but that is only basic and necessary

Decisive for being a successfull FOIA requester is good knowledge of tactics

Law – Tactics

Of course knowledge of the law, of litigation and of jurisprudence is important, but that is only basic and necessary

Decisive for being a successfull FOIA requester is good knowledge of tactics, like:

- Thinking 2 or better 5 month ahead

Law – Tactics

Of course knowledge of the law, of litigation and of jurisprudence is important, but that is only basic and necessary

Decisive for being a successfull FOIA requester is good knowledge of tactics, like:

- Thinking 2 or better 5 month ahead- A good selection of topics

Law – Tactics

Of course knowledge of the law, of litigation and of jurisprudence is important, but that is only basic and necessary

Decisive for being a successfull FOIA requester is good knowledge of tactics, like:

- Thinking 2 or better 5 month ahead- A good selection of topics- Anticipating on obstruction and opportunistic behaviour

Law – Tactics

Of course knowledge of the law, of litigation and of jurisprudence is important, but that is only basic and necessary

Decisive for being a successfull FOIA requester is good knowledge of tactics, like:

- Thinking 2 or better 5 month ahead- A good selection of topics- Anticipating on obstruction and opportunistic behaviour- Anticipating on the use and misuse of exemptions

Law – Tactics

Of course knowledge of the law, of litigation and of jurisprudence is important, but that is only basic and necessary

Decisive for being a successfull FOIA requester is good knowledge of tactics, like:

- Thinking 2 or better 5 month ahead- A good selection of topics- Anticipating on obstruction and opportunistic behaviour- Anticipating on the use and misuse of exemptions

In other words:

- It is all about Tactics

Tactics - 1

Thinking 2 or better 5 month ahead

Everybody can do that, it only takes a change of attitude, that’s all

Try to realise what will be actual in 2 or 5 month timeAnticipate on that and start in an early stage

Tactics - 2

A good selection of topics

- What is fitting in your format

- What do your newsconsumers want

- What is doable

- What is parliament, local or national, doing on this topic

- What is your goal

Tactics - 3

Anticipating on obstruction - Delaying

- We have no time / we are busy / we have higher priorities / we are sick In short: we are civil servant

- Avoid all this / try to be and to stay on speaking terms- Stay polite, no matter what a civil servant says or does- Phone often to inform, to get an update on your request/decision

Example: The contract for a new highway, the A73

Tactics - 4

Anticipating on obstruction - Misuse of exemptions

Anticipate in the use/misuse of exemptions, for instance do you want all the information, do you want the names held in a document

Most of the times you have the names already / in other cases the names are not relevant

Not asking for heavy aspects, names for instance, enlarges your success rate

Example: Remember the Hercules plane crash

Tactics - 5

Anticipating on obstruction - Too laborious

First of all processing a FOIA request is regular work, not extra work for civil servants

Second access is a right

Third and most important, have kowledge of some cases which had an above average volume or workload so that can confront a civil servant with that knowledge [on a polite way]

Tactics - 6

Anticipating on obstruction - The document is not yet finalized

So what?

Ask for it anyway / or ask for the version already existing [a draft or something like that]

Tactics - 7

Integral or partial access

Do you need the complete document or is it no problem to skip partsnames for instance

Example: Remember the Hercules plane crash

Tactics - 8

Strong or weak

- Documents are almost never unique = - There are more copies =- There are more government bodies to file the request =- Choose the weakest one

Example: Remember the enlargement plans of Schiphol airport

Tactics - 9

Paper trail

- Underlaying to a a document are a lot of other documents- Concepts / drafts- Advisory documents- Documents close to your target-document, the surrounding ones- And so on

Filing for the paper trail enables you to reconstruct the policy

Example: Survey into 26 documents by University of Leiden

Tactics - 10

Mosaic theory

- Filing a FOIA request is of course only a part of your research

- Use the FOIA to get access to missing pieces in your puzzle

Example: Earthquacke in Los Angeles

Tactics - 11

Do not believe anything

- If a minister, or an official says this is all……Use the FOIA to check

Example: Number of children expelled from schools

Example: Classification

So….. Welcome in the Netherlands

I am living in a country in which, like in your country a lot of work has to be done by watchdogs like the press, the parliament and NGOs

There is …. Misconduct, criminal behaviour, corruption, undemocratice behaviour….. In simple words there is a lot of work to be done

The FOIA can be a tool in that.

Example: Royal enrichment – The former house of the Crown Prince

Example: 5 woman killed in a hospital

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Questions?

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Questions?

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Questions?