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Klippenstein writes: "Most people on the street can stop and say their Miranda rights ('You have the right to remain silent...'). It's a law of such common usage that people know it. FOIA is a law of equally common necessity that people should be able to know and recite and assert on their own, just like they would a Miranda right."

Lisette Garcia. (photo: Twitter)
Lisette Garcia. (photo: Twitter)

FOIA: The Right You Probably Didn't Know You Have

By Ken Klippenstein, Reader Supported News

01 June 15


isette Garcia is a D.C.-based attorney who specializes in the Freedom of Information Act (FOIA), a federal law that allows ordinary people to access government records. On Tuesday, June 2, she will be a witness testifying before the House of Representatives on ways to improve government compliance with FOIA. Readers can view a livestream of the hearing here.

Ken Klippenstein: Could you describe what your firm does?

Lisette Garcia: We help the public interest sector – I help lawmakers, journalists, and nonprofits get the government records they need. The fact that my firm even exists is a sad testament to agency intransigence.

Most people on the street can stop and say their Miranda rights (“You have the right to remain silent. Anything you say can and will be used against you in the court of law …”). It’s a law of such common usage that people know it. FOIA is a law of equally common necessity that people should be able to know and recite and assert on their own, just like they would a Miranda right.

It would be my hope for all records to go online in real time and not just obviate the need for my firm but obviate the need for the law itself. If all unclassified records went online in real time, we wouldn’t even have the need for a FOIA law.

Ken Klippenstein: What are some of the ways in which the government tries to block FOIA requests?

Lisette Garcia: Fees. That’s one of the issues I really want to raise in the hearing because it’s the one I think affects the most people across the country without even realizing it. If you’re a media requester and you’re big enough and you’ve got a lawyer on your side, you’ll probably get a fee waiver or at least a reduction in fees.

But what if you’re just some PTA group that wants to know how come your district always gets the short end of the stick in federal funding? The nature, the character, the identity of the requester matters – it’s not supposed to. By law, it’s not supposed to.

Ken Klippenstein: Would you say that the more powerful you are, the more likely you are to have your FOIA rights honored?

Lisette Garcia: Oh for sure. 100%! 100%. And that’s completely unfair and undemocratic. It is absolutely the case. If they’re afraid, if they think you have a bully pulpit – if you’re the Washington Post or The New York Times – you’re going to have a better chance. And that’s not fair. We shouldn’t have a media elite.

Some of these newspapers get this stuff and they sit on it – or they get it and they say it doesn’t have news value yet, so they hold onto it, they embargo it. That’s not right.

Regular citizens don’t get that treatment; they don’t get that special class privilege. Nor do bloggers, because the agencies do not recognize new media.

Ken Klippenstein: What’s the government’s motive for denying requests?

Lisette Garcia: There’s a few. The top FOIA chief [for an agency] is typically a Senior Executive Service (SES). They’re almost like the tenured professor of the agency. They’ve got a pretty sweet spot. They’re really tied-in politically. They’re typically big donors to their party. They get plum positions. Their next step after SES is to get nominated for some sort of cabinet-level position that requires Senate confirmation. So it’s in their interest to protect their boss, and they perceive the person in the White House as their boss.

Down from that, there’s the middle-manager type FOIA person. They typically are the bread-and-butter of the organization; they’re the worker bees. I have very little [trouble] with the middle FOIA people. They tend to be honest, they tend to understand their government service is a service to the people. They are frequently constrained by those SES supervisors. At the end of the day, when it comes down to release or not release, if it puts their job in jeopardy, they’re not going to do that. They don’t want to [upset] their boss. They make in the neighborhood of $150,000 – not including benefits.

Then there’s the contractors, and this is where the real problem lies, I think. They make a ton of money, and the biggest problem with them is they have no job security. They make a lot of money because it accounts for the fact that they’re not building seniority or a retirement like government employees do. So they’re strongly incentivized to protect the government secrets or anything that might be perceived as embarrassing, annoying, or frightening in an effort to retain the contract.

Ken Klippenstein is a staff journalist at Reader Supported News. He can be reached on Twitter @kenklippenstein or email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

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