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FOIA: What matters? Knowledge of the law or tactics ?

FOIA: What matters? Knowledge of the law or tactics ?. Lecture by Roger Vleugels Dutch-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

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FOIA: What matters? Knowledge of the law or tactics ?

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  1. FOIA: What matters?Knowledge of the law or tactics ? Lecture by Roger Vleugels Dutch-based lecturer and legal advisor, specialised in FOIA Academic version of my introduction into FOIA tactics

  2. 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

  3. 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

  4. Myclientswithinthepress&more forinstance • Public nationalrtvNOS-journal / Zembla / NOVA / Argos / Reporter • Public regionalrtvL1 / ATV • Commercial rtvRTL News / SBS • National newspapersTrouw / AD / NRC • RegionalnewspapersDe Limburger / De Gelderlander / BN-De Stem • WeeklyRe.Public / De Groene Amsterdammer • OthersGPD • TradeunionsNVJ / FNV • EnvironmentalNGOsMilieudefensie / FANAPA • Individualresearchers • Private persons

  5. 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 FringeIntelligence and FringeSpitting - Two international specialist biweekly email journals - Onefocusingonintelligence services; oneon FOIA

  6. Some observations on Bulgaria I 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

  7. 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

  8. 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

  9. 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 tool a 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

  10. The Dutch parliament = Het Binnenhof

  11. The office of the PM = Het Torentje

  12. The entrance of the parliament complex

  13. First parliament session = De Ridderzaal

  14. An extended and old complex

  15. A view on several of the Ministries

  16. No title Decisive to become a good FOIA requester is: Tactics Good knowledge of the FOIA law itself and of litigationisneededbutjustbasic, it isall about ...

  17. No title Tactics The enlargement plans of Schiphol Airport

  18. No title Tactics The enlargement plans of Schiphol Airport Tactical aspect: choose the weak service

  19. 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

  20. 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 persons In 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 information That is almost always a very poor opinion In my view this opinion generates: • Government guided transparency We need something completely different: • Civil society guided transparency

  21. 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]

  22. History and Context - 4 country sizenumber of requests yearly • NL 1 x NL 1,000 [written requests on national/federal level [ministries and national bodies]]

  23. History and Context - 4 country sizenumber 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]]

  24. History and Context - 4 country sizenumber 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]]

  25. History and Context - 4 country sizenumber 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]]

  26. History and Context - 4 country sizenumber 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 5x NL 1,200 • France 3x NL < 20 • Belgium 0,8 x NL < 20 [written requests on national/federal level [ministries and national bodies]]

  27. Goals, Results and Impact - 1 • The success rate • In NL the success rate after filing a request is 25 %

  28. 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%

  29. 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%

  30. 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

  31. 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

  32. 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

  33. 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

  34. Goals, Results and Impact - 2 • Be tactical in choosing topics for and in formulating of a FOIA requests Another example: • The Hercules plane crash Interrogation minutes + names

  35. Goals, Results and Impact - 2 • Be tactical in choosing topics for and in formulating of a FOIA requests Another example: • The Hercules plane crash Interrogation minutes + names subsidiairy Interrogation minutes - names Tactical aspect: Choose between integral or partial access

  36. 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 Dragon Nobody 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

  37. 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

  38. 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

  39. . Questions?

  40. . Questions?

  41. . Questions?

  42. Law – Tactics Of course knowledge of the law, of litigation and of jurisprudence is important

  43. Law – Tactics Of course knowledge of the law, of litigation and of jurisprudence is important, but that is only basic and necessary

  44. 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

  45. 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

  46. 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

  47. 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

  48. 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

  49. 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

  50. 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 time Anticipate on that and start in an early stage

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