FOIA Advisor

Q&A (2015-16)

Q&A: Let's go to the videotape

Q&A (2015-16)Allan BlutsteinComment

Q.   Can the Michigan FOIA be used to obtain the video of a public high school football game, from that high schools athletic department? I am trying to scout an opponent and they are refusing to give me the video of their game.

A.   A public high school is considered a "public body" subject to Michigan's FOIA. Although none of the exemptions enumerated in section 15.243 of the statute strike me as directly applicable to the videotape you seek, I can only speculate that the high school considers the videotape to be confidential to the same extent as its football team's written playbook -- which, if disclosed, would clearly undermine its operations.  It is also possible that the high school considers the videotape to be an "education record" protected by the Family Educational Rights and Privacy Act.  

For further information, you might wish to review the FOIA guidance provided by the Michigan Attorney General's office.

Q&A: Benghazi, Libya

Q&A (2015-16)Allan BlutsteinComment

Q.   The Benghazi Embassy had to have more than 4 employees/contractors in order to run an operation of that size and scope.  How many were assigned, employed, or contracted, however they're categorized.  Were they ever questioned by Congress? If yes, what did they report? If they weren't, why not?  How do I obtain this information?

A.  If you are interested in documents concerning Benghazi, you could send a FOIA request to the U.S. State Department (instructions here).  Keep in mind, however, that an agency is not required to answer questions in response to a FOIA request; it need only search for reasonably described records.  Additionally, before making a request, you might wish to browse reports and hearing testimony available from the U.S. House of Representative's Select Committee on Benghazi.  

Q&A: Good service is hard to find

Q&A (2015-16)Allan BlutsteinComment

Q.  Who do I serve if I am filing a FOIA lawsuit against the U.S. Customs & Border Patrol?

A.  Service of process in federal matters is governed by Rule 4 of the Federal Rules of Civil Procedure.  Note that subsection (i) addresses suits against the United States and its agencies.   You might also wish to consult the local rules of the district court in which you file the suit.   As an example, see the local rules for the U.S. District Court for the District of Columbia.  Additionally, section 5.42 of title 6 of the Code of Federal Regulations provides information about the service of summonses and complaints against the U.S. Department of Homeland Security.  

Guidance for pro se litigants is available from most federal district courts.  The U.S. District Court for the District of Columbia, for example, has published this handbook about how to file suits.

Q&A: The Real Thing?

Q&A (2015-16)Allan BlutsteinComment

Q.  I requested and received some financial information from the VA involving the dollar amount of transaction fees paid to our company, per year, under specific identified contracts.  You would think we had that information, but payment is collected and distributed by a third party and our accounting was managed by an outside source.  We believe that our vendor under-reported the collection of fees and diverted those.  Accordingly, we went to the agency and through a FOIA request asked for a summary by year of fees paid. Those fees turned out to exceed those reported by our vendor.  For purposes of litigation, how do I authenticate the validity of the data?

A.  The Department of Veterans Affairs can attest under seal or certify that the records are true copies.  The agency will charge a fee for this service.  For details, contact the FOIA office that processed your request.

 

Q&A: O Michigan Voter, Where Art Thou?

Q&A (2015-16)Allan BlutsteinComment

Q.  Are absentee voter applications [in Michigan] subject to FOIA and what information,  if any, will be redacted?

A.   Certain information that appears  on an absentee ballot application, such as a home address, would typically be protected in response to an access request.  In this instance, however, Michigan's election law provides that applications for absentee ballots "shall be be open to public inspection at all reasonable hours."  I infer from this provision that no information would be redacted in response to a request to inspect an application (or a FOIA request).   For additional guidance, you might wish to contact the Secretary of State's Office, which oversees elections in Michigan.         

Q&A: Go Blue?

Q&A (2015-16)Allan BlutsteinComment

Q.   If I were to submit a police report [in Michigan], what information on that report would be available through the freedom of information act?

A.  Michigan's FOIA contains several exemptions that a police department might rely upon to withhold information from a police report or other records.  For example, the statute authorizes a public body to withhold information "of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy." MCL § 15.243(13)(1)(a).  Additionally, a public body may withhold investigating records compiled for law enforcement purposes if disclosure would interfere with law enforcement proceedings, constitute an unwarranted invasion of personal privacy, or disclose the identity of a confidential source.  See MCL 15.243(13)(1)(b). 

Please note that the above-referenced exemptions are discretionary, meaning that a public body may release records even when it is legally entitled to withhold them.  But a police department is not likely to make a discretionary release of law enforcement information if doing so would jeopardize an individual's safety.  For further information, you might wish to contact the Michigan Coalition for Open Government, your local police department's FOIA coordinator, or a Michigan FOIA attorney.   

Q&A: It's Fort Knox

Q&A (2015-16)Allan BlutsteinComment

Q.   I am having a problem getting any type of response from the FOIA office at the U.S. Army Human Resources Command in Fort Knox, KY.  In December 2015 I submitted a FOIA request to the e-mail address specified on their web site. So far no acknowledgement of receiving the request. A phone call to that office was never returned.  On September 17, 2016 I submitted a written FOIA request to the address specified on their web site. So far no response acknowledging receipt of the FOIA request. Today I tried to call the individual shown to be in charge of the FOIA office. Only able to reach an answering machine. So far no response from my message.  Any suggestions as to what I can do to get a response?

A.  Based on my own experience, I would suggest contacting Tifanie L. Cropper, Government Information Specialist, U.S. Army Human Resources Command, Freedom of Information & Privacy Act Office, tel. 502.613.4832, tifanie.l.cropper.civ@mail.mil.  If you still do not receive a response, you might wish to ask for help from the Office of Government Information Services.  

Q&A: Getting into the weeds

Q&A (2015-16)Allan BlutsteinComment

Q.  The EPA denied my request for the "other" ingredients on a generic Glyphosate product label.  I was injured by this product, but EPA has determined that the information is confidential.  

A.  A product's formula may very well be protected under Exemption 4 as a trade secret or confidential business information.  A trade secret, for example, has been held by the D.C. Circuit to mean "a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort."  Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1288 (D.C. Cir. 1983).

For additional guidance on Exemption 4, you might wish to consult the U.S. Department of Justice's Guide to the Freedom of Information Act.   

Q&A: As Time Goes By

Q&A (2015-16)Allan BlutsteinComment

Q.    I am researching a crime that occurred in Vietnam in 1970.  The victim was a civilian.  The Army has disclosed records, redacted substantially using exemptions (b)(6) and (b)(7)(C). Since these records are 46 years old, does FOIA caselaw provide a greater burden on the government to justify non-disclosure?  Many records are witness statements, interviews, investigative reports, and medical records.

A.  The passage of time does not heighten the burden of proof that the government must carry with respect to Exemptions 6 and 7(C).  Indeed, DOJ has opined that "[a]s a general rule, the passage of time serves to increase an individual's privacy interests, even in personal information that was once publically [sic] available."  U.S. Dep't of Justice, Guide to the Freedom of Information Act, Exemption 6, p. 36 (last updated Jan. 10, 2014).    

If you are familiar with any of the third parties involved, it might be worthwhile to investigate whether any are deceased, which would likely result in the disclosure of additional information.  An agency may presume that an individual who would be 100 years old at the time of the request is no longer alive.  See Schrecker v. DOJ, 349 F.3d 657, 662-65 (D.C. Cir. 2003) (upholding FBI's 100-year rule).  Keep in mind that that the D.C. Circuit requires agencies to take basic steps to investigate the life status of third parties.  See Johnson v. EOUSA, 310 F.3d 771, 775-76 (D.C. Cir. 2002).  

Q&A: Liar, liar, pants on fire?

Q&A (2015-16)Allan BlutsteinComment

Q.  If a local fire department receives federal grant funds, is it bound to follow the federal FOIA?  Can the FOIA request be for "information" that isn't printed on a document or recorded on some other type of record, but is known by government employees as organizational knowledge?  If the fire department is telling taxpayers that it needs new furniture and a bigger administration building, can taxpayers submit a FOIA request to personally view the current structure and furniture and create their own photographic document, thus obtaining the FOIA requested information? 

A.  Receiving federal funds would not obligate a local fire department to follow the federal FOIA. The department may be subject to the state's public records law, however.  Further, the federal FOIA is not an "information" law, despite its title.  The FOIA applies to agency records only.  A federal agency is not required to answer questions, create new records, or provide explanations about existing records in response to a FOIA request.  Nor does the federal FOIA require an agency to accommodate a requester's interest in taking photographs of federal property.  A state public records law is unlikely be more helpful.