The Art of the Ask

A few weeks ago I talked about the great tips and strategies suggested by David Cuillier in his Access Across America talk. Between the things Cuillier had to say during the presentation, the fantastic handouts and Cuillier’s book, The Art of Access, there are so many helpful suggestions that it’s hard to pick among as candidates for further exploration.

Maybe, then, it’s best to start at the beginning. The beginning of a FOIA request, that is. The “Ask.”

Virginia’s FOIA doesn’t require a FOIA request to be put in writing, but we usually recommend doing so. It cuts down on misunderstandings about what is/isn’t being asked for, it clearly sets out the timeline for response, and should anything go wrong down the line, it will be part of an important paper trail for the judge.

Not all letters are created equal. Written communication can often reflect the personality of an individual even better than oral communication. And misunderstandings can still arise.

So what’s the best way to ask? Is it more effective to ask nicely or to flex one’s muscle early on? I don’t know about you, but my instincts tell me that the friendlier the better. FOIA is not and should not be an adversarial process. And there’s a reason why the cliché about attracting more flies with honey than with vinegar is a cliché. No one likes to be bullied.

But does friendly really work?

In 2007 Cuillier and a colleague did an experiment: they sent letters to all 104 police agencies in Arizona asking to look at police use-of-force incidents. Selected at random, half were sent a friendly letter that thanked the recipient in advance, acknowledged the time it would take out of the clerk’s day, and offered to help if necessary. The other half were sent a “threatening” letter, which included statements of a willingness to sue, and which matter-of-factly, and somewhat aggressively, stated the receiving agency’s obligations in the process.

Which one got more results? The threatening one.

According to Cuillier, only half of those who received the friendly letter even responded to it. And only 4% actually provided the records. Compare that to the unfriendly letter, where two-thirds responded and 14% turned over the records. The threatening letter also resulted in lower copy fees and a faster response.

When Cuillier repeated the experiment with 208 school districts -- asking for coaching and superintendent contracts -- he added a “neutral” letter to the mix, one that was matter-of-fact, but that didn’t threaten suit. Again, the threatening letter garnered the best response rate: 74% versus 50% for the friendly and neutral versions. Copy fees were again lower, as were the response times.

Cuillier speculates that one explanation may be that clerks who received a friendly letter were more likely to ignore it or to take their time. The clerks who received the threatening letter were more likely to take it to a higher-up  (an attorney or top official) who responded to it appropriately.

I’m not ready to advocate for the unfriendly approach, especially when it’s a first-time request where there’s no history of animosity. VCOG’s Web site has a letter generator that allows the insertion of language on suing, but it’s optional, and its use should not, in my opinion, be a bluff.

Conveying one’s seriousness and familiarity with the law is important, as is common courtesy. I think the two can co-exist.