Requests that bog down agencies are given a variety of names – vexatious, unduly burdensome, etc. How do agencies minimize the harm of such repetitive, vague, or huge requests without restricting the flow of information? Most agencies can apply copy fees to encourage requesters to hone their asks, but is that the solution? Some states allow the banning and fining of requesters deemed “vexatious.” Is that too far?

A team of researchers are seeking answers, publishing a 50-state inventory of how the issue is handled across the country, including the different definitions and terms. They’ve also gleaned the literature to find various approaches and suggestions. See the list below, which includes anything and everything, no matter its merit or practical application. What do you think should be done?

Jump to:
– Legal mechanisms
– Process
– Technology and resources
– Discussion

I.   Legal mechanisms

1. Time extensions. 32 states allow for time extensions for large requests (CA, CO, DE, FL, GA, HI, ID, IL, IA, KS, ME, MD, MS, MI, MS, MO, NE, NV, NH, NM, NC, ND, OH, OR, PA, TN, TX, UT, VT, VA, WA, WV). Also, see GAO report on backlogs recommending this as a solution for complex requests. Provide waiver for requests in public interest (how to define public interest?). Examples:

• New Mexico allows access professionals additional time to respond to “burdensome or broad” requests, but they must notify requesters within 15 days that they will be using the extra time.
• Virginia (VA Code § 2.2-3704(B)(4) (2022)) states that if it is not practically possible for a public body to deliver a request within five working days (default deadline) of receiving a request, the public body may be granted an additional seven days to fulfill the request by stating why it is impractical to find and provide the requested records in the default time frame.

2. Fees. All but a few states allow substantial fees to be levied for large requests. Different provisions – extra charges after certain time/pages, or just charge for search/redaction time. Idaho law provides a waiver for requests in the public interest and for those without means (U.S. FOIA has a similar provision for public interest, but not sure how well it works in practice). Examples:

• Oklahoma (51 OK Stat § 24A.5 (2022)) allows a public body to charge a reasonable fee to recover costs of record search and copying if a request would clearly cause excessive disruption of the essential functions of the public body.
• Nevada charges only the cost of copies (toner, paper), unless a request is “extraordinary,” when an agency is allowed to charge more (up to 50 cents per page). The agency must post its policy on this to charge more for extraordinary requests.
• Tennessee requesters can be charged additional fees for multiple/frequent requests.

3. First few hours/pages free. Many states provide free time/copies for initial taste, but then charges after a few hours or 100 pages. Examples:

• Texas has decided that multiple requests of the same records return a certification that the records have already been provided. Also, a limit on free records over a year’s time (36 hours of time in a year, or 15 hours in one month)
• Florida, first few hours free and after that they can charge search/redaction time.

4. Advance payment. 33 states allow agencies to demand advance payment before processing requests, which is one way of dissuading large requests. Examples:

• Georgia (GA Code § 50-18-71(d) (2022)) law states that if costs exceed $25 for responding to a request, the agency may defer search and retrieval of records until requester states willingness to pay; if estimated costs are over $500, an agency may insist on prepayment; if past requests are unpaid, an agency may require prepayment for compliance with all future requests until the previous charges are paid.
• Vermont can request that “all charges be paid, in whole or in part, prior to delivery of the copies.” In unusual circumstances, the time limit to deliver a request may be extended. (1 V.S.A. § 318(b)(5)
  

5. Maximum limit. Cap the number of hours for an FOI search to 40 (Mitchell and Voon 2014); Or, full cost recovery above a 40-hour threshold (Mitchell and Voon 2014).

6. Differential charging on fees based on the category of applicant (Mitchell and Voon 2014). Arizona has something like this – commercial requesters pay more than non-commercial requesters.

• Utah (UT Code § 63G-2-203 (2022)) allows government entities to charge for the initial 15 minutes of time spent responding to a request if the requester is (1) not a Utah media representative, and (2) has filed a separate request in the previous 10 days. (House approves bill that could make it more costly to request public records)

7. Outright denial/ignoring. 22 states allow denial of requests that are too big, vague, non-specific, or burdensome (AZ, CA, CT, KS, KY, ME, MD, MS, MI, MS, MO, NE, NV, NH, NM, OH, PA, SD, TN, UT, WA, WI). Provide waiver for requests in public interest? Examples:

• California allows requests to deny when it is deemed unduly burdensome.
• Hawaii created the first U.S. law addressing vexatious requests in 2010, in response to the flood of requests for Obama’s birth certificate. Allowed agencies to ignore requests that asked for too much too often. Later reversed this law?
• Kansas allows records custodians to deny access if a request “places an unreasonable burden in producing public records or if the custodian has reason to believe that repeated requests are intended to disrupt other essential functions of the public agency,” and that any refusal must be proven by a preponderance of the evidence.
• Kentucky can refuse if the request presents an unreasonable burden, or if the custodian believes repeated requests are intended to disrupt essential functions (clear and convincing evidence).
• New Jersey (NJ Rev Stat § 47:1A-5(g) (2022)) states, “If a request for access to a government record would substantially disrupt agency operations, the custodian may deny access to the record after attempting to reach a reasonable solution with the requestor that accommodates the interests of the requestor and the agency.”
• Ohio (OH Rev Code § 149.43(B)(2) (2022)) states that if a requester makes an ambiguous or overly broad request, the public office may deny the request and provide the requester the opportunity to revise the request. 
• Washington (proposed legislation) SB 5571/HB 1597: Limiting frivolous claims by modifying administrative and judicial review processes for public records request responses. The bill was introduced in 2023 after “[a] single individual has filed over 100 lawsuits [over four years] against agencies across Washington, costing taxpayers millions of dollars in settlements, legal costs, penalties, and other payments,’ according to the association.” The state has had case law for decades allowing agencies to deny requests that are overly broad.
• Wisconsin law states that “A request … is deemed sufficient if it reasonably describes the requested record or the information requested. However, a request for a record without reasonable limitation as to subject matter or length of time represented by the record does not constitute a sufficient request.” Wis. Stat. § 19.35(1)(h)
• Australia allows for the Information Commissioner to declare a requester to be vexations.  Vexatious requests (or requesters) do not have to be honored. 
• The United Kingdom allows for the public authority or Information Commissioner to declare that a request is vexatious, and does not have to be honored.
• New Zealand allows for the refusal of a request if it is frivolous or vexatious.
• United States (federal FOIA) allows agencies to deny requests for records that are not “reasonably described.” Courts have allowed agencies to deny requests that were “fishing expeditions,” broad, sweeping, or questions disguised as FOIA requests (summary with cites at FOIA Wiki). The statute, itself, does not define nuisance requests or unduly burdensome requests, per se.

8. Agency discretion. Let the agency come up with policies that prevent interference. Example:

• Michigan law provides that “a public body can make reasonable rules necessary to protect its public records and to prevent excessive and unreasonable interference with the discharge of its functions.” How has that played out?
• Arizona law allows agencies to deny requests if they deem them to “not be in the best interest of the state.” Courts have gone both ways on this, regarding large requests.

9. Fines and bans. Utah, Connecticut, Tennessee. Suitable for dealing with those few egregious cases? Put the bar high. Do not incorporate intent/motive of the requester as a criteria. Exclude requests in the public interest. Have an independent entity/commission make the determination. Example:

• Connecticut can charge bad actors $1,000. Allows denials based on number of requests, scope of the requests, nature and subject matter, nature of the communications, and pattern of abuse.

10. Signed promise to be good. Make requesters sign certification that they are not intending to harass (suggestion by Green). Also, some odd requirements are starting to pop up – notarization, show of ID, etc.

11. Blackout periods. During peak election work time. Specific to elections, in particular.

12. Quota system. Allow one request per day (Rizzardi), or one per month, and preference to citizens, like state-level residency requirements.

13. Sue requesters. Agencies going to court to get an injunction to force them to stop. Seen in Utah 20 years ago, and other places. Similarly, SLAPP suits – agencies going to court to see if they have to respond, sometimes about size, but usually about the law (e.g., FERPA). Elouise McDaniel, sued by Irvington, N.J., for too many requests

14. Prohibit anonymous requests (Rizzardi, 2015), also discussed in Pennsylvania in 2024 in response to requests generated by FOIA Buddy.

15. Require notice of intent to sue. This is to solve the problem of predatory requesters – those ones in Florida gaming the system (Rizzardi, 2015). This may have solved that problem.

16. Reverse fee-shifting (Alaska and a few other states). Allow government agencies to recover attorney fees and costs if a requester sues and loses (Rizzardi, 2015). May not be directly tied to unduly burdensome requests, but rather, frivolous litigation.

17. Exempt specific types of records that tend to be burdensome, e.g., sensitive research, election records. Green also suggested adding more specific exemptions to make it clear what is open and what is closed.

18. Prohibiting AI to generate massive, malicious requests, as proposed in the Pennsylvania legislature summer 2024 (https://www.legis.state.pa.us/cfdocs/Legis/CSM/showMemoPublic.cfm?Chamber=S&SPick=20230&cosponId=42980) 

II.  Process

1. Proactive posting (Kimball, 2016; Rizzardi, 2015; New Jersey giving money to it). Arkansas law, for example, requires agencies to post a variety of records proactively.

• Appoint someone to identify the most frequently requested records, and then post online following review.

2. Shift commonly requested first-party requests outside of the FOI process, like Social Security benefits statements (see Margaret Kwoka’s work on this).

3. Training of custodians. Improve government compliance with the law through training of officials, and all employees (Kimball, 2011; Michener & Nichter, 2022; Pina & Avellaneda, 2018; Rizzardi, 2015). Also, see latest FOIA Advisory Committee recommendation on employee training: https://www.archives.gov/files/ogis/documents/finalreport.6.17.24.pdf#page=17

4. Educate requesters. Help them be specific, research ahead of time, explain what looking for, be polite, put request in writing, be realistic, make request in person, anticipate fees for large requests (Kimball, 2016).

5. Required assistance. Have custodians to work with the requesters to hone/perfect. See FOIA Advisory Committee 2024 recommendation on agencies providing such assistance, if requested: https://www.archives.gov/files/ogis/documents/finalreport.6.17.24.pdf#page=11

6. Modify “still interested” letters to offer suggestions to requesters on how to hone the request and move it through (based on new BLM practice).

7. Centralize election records management – a state system instead of counties (Green, 2023). Specific to elections.

8. Centralize the FOI process with one agency FOI point-person to make more efficient (Berkeley study).

9. Build culture. Hire custodians who value transparency in a democracy (test this in the survey), or build such a culture through training (Kimball, 2016).

10. Mediation. Alternative dispute resolution mechanisms to resolve problems (mediation office). About half the states have some sort of mediation, often within the AG’s office. Other states have independent entities that can help work through sticky issues (Ohio, Connecticut, Pennsylvania, New Jersey).

11. Legal help for custodians. A place for clerks/custodians to get help, particularly for smaller agencies (when their legal counsel isn’t 100% familiar with FOI). Perhaps AG offices.

12. Public shaming. Post names of abusive requesters online to shame them, similar to what we do with sex offenders (Green).

• Illinois has specifically acknowledged “recurrent requesters” by defining who they are, yet, agencies are still required to fulfill their requests within 21 days (so what’s the point, other than to point them out?).
• FBI in 2016 had a “vexsome filers” list, quantifying their most frequent filers: https://www.muckrock.com/news/archives/2017/mar/10/fbis-2016-vexsome-filer-list-whos-who-foia/ (They refused to provide the list when requested in 2024.)

III.  Technology and resources

1. Better technology to deal quickly and efficiently with large requests (Bevarly, 2014; Kimball, 2016; Green, 2023). Online portals (e.g., NextRequest).

2. Email software for archiving, searching, redaction (e.g., Smarsh).

3. FOIA log online, cutting down on requests (Suzanne).

4. Online search forms for the public to find records themselves (Green).

5. AI for effective searches and basic redaction. Jason Baron from University of Maryland really into this, and would have thoughts.

6. Staff. More staff/resources for agencies (Kimball, 2016; others).

7. State fund for grants to small agencies for upgrading records management systems (Washington state has such a fund). (Richard Varn, CSPRA)

Discussion