Q&A: Snap, crackle, and sue

I am a consultant who helps retailers who are enrolled in SNAP (aka food stamps). A retailer based in New York received a USDA letter that accused the retailer of food stamp trafficking. I submitted a FOIA on the retailer’s behalf that asked for all documents, photos, etc of the case write up. After five months, USDA responded with documents but many were heavily redacted. So I did an administrative appeal within 90 days.

Last week, after 350 days, USDA denied my administrative appeal by essentially using the sample language as before Exemption 5/7 etc. Its response indicated that I can file for judicial review. I looked at other FOIA websites and they seem to state we can do this ourselves and have provided very helpful templates which I plan to use. But, I have a number of questions that these websites do not address.

Q1. Do I even need to go judicial? Can I just resubmit a new FOIA again to USDA/FNS and restart the process? 
A. You may submit a duplicate request, of course, but the agency will likely send a duplicate response or simply refer you to its earlier response. If you do not wish to file a lawsuit, you can try to ask the agency to reconsider its appeal response. Note that neither the statute nor the agency’s regulations entitle requesters to seek reconsideration of appeals, but the agency is permitted to respond to such requests as a matter of discretion. Additionally, you might wish to seek assistance from the Office of Government Information Services.

Q2. If I appeal judicially, do I have six years to file with the District Court?
A. Not quite. The applicable statute provides that "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." 28 U.S.C. § 2401(a). A FOIA claim "accrues" when a party has actually or constructively exhausted all administrative remedies. Thus, your claim accrued—and the six-year clock began to run—twenty business days after USDA received your administrative appeal, not on the date USDA issued its appeal response. See Reep v. DOJ (D.D.C. 2018).

Q3. During that six years, does USDA/FNS have to wait for me to see if we will file a judicial FOIA appeal or is it allowed to continue with working on the case?
A. The agency has discretion to reopen your request even if you do not file a lawsuit, but it is not required to do so.

Q4. If I decide to file a FOIA appeal judicially, this RCFP website suggests I file: (1) a short-form complaint and/or (2) a “Motion for Vaughn Index” (https://www.rcfp.org/federal-open-government-guide/federal-freedom-information-act/how-file-foia-lawsuit). Do I need to do both 1 and 2? Can they be filed at the same time? Which takes less time for the government to complete? A. In my experience, most FOIA plaintiffs do not file motions for a Vaughn Index, as you can see from the FOIA Project’s database of FOIA lawsuits. The government typically prepares a Vaughn Index in connection with its motion for summary judgment.

Q5. Can I file by mail? USDA/FNS HQ is in DC. I'm assuming Wash. DC District Court. Who do I address the envelope to?
A. The U.S. District Court for the District of Columbia has a handbook for pro se litigants that addresses these issues.

Q6. What are the fees to file a FOIA appeal? If I do 1 and 2 (from Question #4), are they separate fees for each? Who do I make the check out to?
A. The fee for filing a civil complaint in the U.S. District Court for the District of Columbia is $400. The full fee schedule and payment instructions are posted on the court’s website here.

Q7. If I do a short-form complaint, I will also include all the dated documentation USDA sent me. And I will include a prepaid postage return envelope. Anything else I'm missing?
A. I again refer you to the court’s pro se handbook for guidance, but I will point out that you at least need to complete a civil cover sheet and multiple summonses. Copies of those forms are available here. You also might wish to refer to copies of recent filings contained in the FOIA Project’s database.

Q8. If I do file a judicial appeal. For #1 and #2 (question 4), do I need to reference the FOIA tracking #? The sample FOIA complaint appeal and Motion for Vaughn Index templates from other websites don't include any FOIA tracking # in their response.

A. Your complaint will not be dismissed if you exclude the request tracking number, because that information is not a material fact. Many FOIA plaintiffs include the tracking number in their complaints, however, for the sake of completeness or to distinguish multiple requests that are being litigated.

Q&A: Crimes and misdemeanors

Q. I am aware of the attorney-client privilege and the crime-fraud exception with regard to attorneys for private parties, but does it apply in the case of attorneys with the government? Put simply, can government employees use government attorneys to further known fraud and illegal activities, and are those communications covered under the attorney-client privilege or can the privilege be pierced?

A. I am not aware of a FOIA case in which the court has actually overruled an agency’s withholding based on the crime-fraud exception, but district courts appear to be willing to consider its applicability. In 2014, for example, the Southern District of New York ultimately rejected that the exception applied to disputed documents, but stated that it was “skeptical of the government's contention that the crime-fraud exception has no applicability in the FOIA context."  Nat'l Immigration Project of Nat'l Lawyers Guild v. DHS, No. 11-3235, 2014 WL 6850977 (S.D.N.Y. Dec. 3, 2014). The court reasoned that "it is utterly implausible to suppose that Congress intended FOIA Exemption 5 to shield government documents when they were created for the purpose of furthering a crime or a fraud." 

Additionally, in 2015. the Eastern District of Pennsylvania evaluated whether records withheld in FOIA case under the attorney-client privilege fell within the crime-fraud exception (which the court stated was a “well-known” exception), but it concluded upon review of the disputed records that there was no evidence of crime or fraud. Pellegrino v. TSA No. 09-5505 (E.D. Pa. May 6, 2015). More recently, however, the Southern District of New York noted that it was “unclear whether a court construing FOIA could properly order disclosure based on the applicability of [the crime-fraud] exception.” Sorin v. U.S. DOJ, 280 F. Supp. 3d 550 (S.D.N.Y 2017).

Q&A: The wheels of justice turn slowly

Q.  According to an acknowledgment email, the DOJ's National Security Division received our FOIA request on the 20th of July. Yet as of this time, there is no response. What are my options?

A.  The DOJ's response to your request was due within 20 business days, which by my calculation is August 17, 2018.  If "unusual circumstances" apply to your request, however, DOJ may notify you that it is taking an additional 10 business days to process your request.  Once the response deadline passes (whenever that may be), you are entitled to file a lawsuit in federal court.

Short of a lawsuit, you might consider asking NSD's FOIA public liaison for an estimated date of completion.  According to DOJ's most recent FOIA annual report, NSD takes an average of about 342 days to process "complex" requests and 31 days to process "simple" requests.  Thus, if the acknowledgment letter does not indicate which processing track your requests falls into, you should ask the NSD liaison.  

Other options include asking NARA's Office of Government Information Services for assistance.  Keep in mind, however, that OGIS cannot compel an agency to speed up a response.  Another means of prodding the agency would be to contact your Congressperson, who will then forward your concerns to the agency with a less-than-passionate request for assistance.  

Q&A: Virginia is for lovers?

Q.  I submitted a FOIA request as a citizen of Virginia. Soon after, three people of the local government including the Board of Supervisor chairman contacted my employer to file a complaint. I received the information requested, but is it a violation of FOIA to harass and intimidate an individual by contacting their employer?

A.  The Virginia Freedom of Information Act does not address the unfortunate behavior you have described. Other state laws or local policies might apply, but you should confer with an attorney licensed in the Commonwealth for legal advice.   

P.S. The Virginia FOIA does not prevent you from submitting a follow-up FOIA request that seeks copies of the offenders emails about you (or any other topic of interest),  as well as their personnel files, work calendars, travel expenses, etc.

Q&A: Defense contractors on the lookout?

Q. Is it possible, under the FOIA, to obtain information about the list of companies that will be audited by the Defense Contract Management Agency ("DCMA")?

A. Records concerning prospective or scheduled audits are likely controlled by multiple agencies within the Department of Defense ("DOD").  DCMA is primarily tasked with contract administration; after a contract is awarded, DCMA ensures contractor performance.  Formal auditing before and after a contract award, however, appears to be undertaken by the Defense Contract Audit Agency ("DCAA").  If you are looking for records concerning companies under audit, or which are slated for audit, then you should consider submitting FOIA requests to both DCMA and DCAA.

That being said, any responsive records are likely to be heavily redacted or withheld in full.  First, these records could be protected by Exemption 5, insofar as they reflect DOD's deliberations about which contractors to audit (or not to audit!).  Second, to extent the records contain specific details about any one contractor, Exemption 4 may be used to withhold privileged or confidential business information.  Finally, depending on what sort of audits we're talking about, Exemption 7 could be in play, too.  Routine administrative or oversight audits arguably do not fall within the scope of a "law enforcement purpose," unless they are later connected to another investigation.  But if there is any nexus between a scheduled audit and an examination of potential illegality, then the agency could have a colorable Exemption 7 argument and it will be that much more difficult to get useful information.

Q&A: Attention Ponch and Jon

Q.  I submitted requests to the California Highway Patrol for video records and received the following response:  "As your request relates to item 2, the PRU has determined it possesses the record sought; however, your request does not describe an item which falls within the definition of public records pursuant to Government Code section 6254(e).  Moreover, assuming the item requested did constitute a public record, an exemption applies pursuant to government code section 6254(k) as it relates to Penal Code 1054 subdivision (e) and the record is being withheld." 

I have never encountered such a claim before, and despite a fair bit of research I don't understand what CHP is claiming. The video record is from a helicopter camera and it captures the end of a police chase. There is a ground-based dash camera video record capturing the same chase. CHP did not claim any exemptions for that video and they intend to release it.

A.  I have not found a California court decision that has considered an agency's use of Penal Code 1054(e), in conjunction with 6254(k), as the basis for withholding records requested under the Public Records Act.  For further assistance, you might wish to contact an attorney licensed in the State of California.  Although I cannot endorse any particular attorney or organization, I will note that the First Amendment Coalition, a non-profit organization in San Rafael, California, frequently fields questions about the PRA.   

Q&A: See me, Feel me

Q.  It has been 8 business days since we made a FOIA request to the DOJ. We have not received an acknowledgement letter or tracking number yet. DOJ's website states DOJ "ordinarily will send you a letter acknowledging the request ..."  How common is it for them not to send an acknowledgement letter?

A.  The statute requires agencies to assign a tracking number after 10 days, see 5 U.S.C. 552(a)(7)(A), and most agencies will acknowledge a request within a few weeks of receipt.  If you are concerned about whether your request was received, or simply are eager to get a tracking number, you might wish to contact the agency's FOIA Public Liaison.

Q&A: Is something rotten in the state of California?

Q.  I formally requested copies of a [California] city's  bank reconciliations and the City sent the following response:  "The City has located responsive documents, but they are exempt from disclosure under California Government Code 6255.” No other explanation was given.  Since these are public taxpayer funds subject to full transparency, and the potential for embezzlement could be in the millions of dollars, can you please explain why this information would be exempt?

A.   Section 6255 of the California Government Code is a “catchall” exemption that agencies may rely upon when they can show that the public interest in nondisclosure clearly outweighs the public interest in disclosure.  The following guidance from the Reporters Committee for Freedom of the Press explains Section 6255 in more detail.  The League of California Cities also has issued guidance on the Public Records Act (including Section 6255) that might be instructive.  

Q&A: Indiana here I come?

Q.  Can I request all documents and emails containing my name and address from Indiana Child Protective Services that they have from this year ?

A.  I am not sufficiently familiar with Indiana's Access to Public Records Act (APRA) to predict with certainty how the agency would likely process your request.  I suspect, however, that you would not be able to obtain records of any complaints or pending investigations about you, for example, nor records of third parties in which you are merely mentioned.  For a more informed answer, you might wish to contact a lawyer licensed to practice in the State of Indiana or  Indiana's Public Access Counselor, which provides free assistance to the public concerning records access laws.  

Q&A: Is there anybody out there?

Q.  I sent a FOIA request to an agency in Illinois and it is has completely ignored the request.  What can be done?  Can I get any relief and/or financial compensation?

A.  If you believe that an agency has violated the Illinois FOIA, you might consider asking the Attorney General's Public Access Counselor to review your request.  The instructions for submitting such a request are available here.  There are three ways that the PAC may resolve a request for review:

(1) Decide that no further review is necessary.  If the PAC decides that the alleged violations of FOIA are unfounded, the PAC will advise the requester and the public body of that decision. The PAC will not conduct any further review. 

(2)  Work to resolve the FOIA dispute with the public body. (5 ILCS 140/9.5(f)) The PAC may choose to mediate the dispute or resolve the matter by means other than the issuance of a binding opinion. The PAC’s decision to refuse to issue a binding opinion is not reviewable.

(3) Issue a binding opinion.  The PAC will review any information needed to analyze the FOIA dispute and any additional information that the requester or the public body provides. If the PAC decides to issue a binding opinion, the PAC must issue that opinion within 60 calendar days after receiving the Request for Review. The PAC may extend the 60-day time period by 21 business days by sending a written notice to the requester and the public body, and must include the reasons for the extension

For more information about this review process, see pages 5-8 of the following guidance.  

I do not believe that the Illinois FOIA allows requesters to recover damages for an agency's failure to produce documents.  The federal FOIA, upon which the most state public records laws are modeled, does not.  You should, however, consult with an attorney licensed in Illinois if you are interested in obtaining legal advice about the state statute.