FOIA Advisor

Q&A (2018)

Q&A: Indiana here I come?

Q&A (2018)Allan BlutsteinComment

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&A (2018)Allan BlutsteinComment

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. 

Q&A: Odds and ends

Q&A (2018)Allan BlutsteinComment

Q.  Why must tax-paying U.S. citizens wait for a FOIA request, which according to FOIA takes 3-6 months minimum, while non-tax-paying visitors to the U.S. have the option of an online I-94 form request that provides immediate access to records?

A.  The online form to which you refer was launched by the U.S. Customs and Border Patrol in 2014 and permits travelers to retrieve their I-94 arrival/departure record number and five-year travel history.  The I-94 system was automated in order to increase efficiency and streamline the admission process for the traveling public.  It appears as if holders of U.S. passports also are able retrieve their traveling histories.   

Q.  I sent a FOIL request to the New York County DA’s office and they said  that it would take three weeks.  That time has come and gone and I cannot get a definitive time frame for a response.  What can I do?

A.   If you believe the District Attorney's response to your FOIL request has been unreasonably delayed, you might consider submitting an administrative appeal to that office or asking for a written advisory opinion from the New York Department of State's Committee on Open Government.  The Committee has addressed the issue of delays in several advisory opinions.  See, e.g., https://docs.dos.ny.gov/coog/ftext/f18008.html.  If you ultimately wish to litigate the matter, I can only suggest that you confer with an attorney in New York.  

Q&A: Overcoming Exemption One "Glomarization"

Q&A (2018)Ryan MulveyComment

Q.  What is the best process for challenging a refusal by the CIA to confirm or deny the existence of records under Section 3.6(a) of Executive Order 13526?

A.  The type of determination to which you are referring is known as a “Glomar response” or “Glomarization.”  Although an agency can issue a Glomar response based on different FOIA exemptions, the relevant one in your case is Exemption One, 5 U.S.C. § 552(b)(1).

Exemption One permits an agency to withhold information “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy.”  Such information must not only qualify for classification but “in fact [be] properly classified.”  Executive Order 13526 sets forth the current standards and procedures for national security classification.  It identifies both the substantive categories of information that can be classified (e.g., military plans) and the procedural requirements that an agency must satisfy to effect classification.

Executive Order 13526 also provides non-disclosure protection for the fact of the existence of records.  Under Section 3.6(a), “[a]n agency may refuse to confirm or deny the existence or nonexistence of requested records whenever the fact of their existence or nonexistence is itself classified under this order or its predecessors.”  On a “mosaic” or “compilation” theory, this protection can even extend to sets of non-classified records that implicate national security concerns when considered in the aggregate.

FOIA requesters usually rely on two methods to overcome an Exemption One Glomar response.  First, while in litigation, a requester can challenge the affidavit providing the basis for an agency’s refusal to confirm or deny the existence of records.  An affidavit may lack specificity or vital details, or it may contradict other available evidence regarding the existence of the requested records.  There could be an independent basis to prove bad faith on the part of the government in handling the FOIA request or records at issue.  Challenging an agency affidavit is difficult.  Courts tend to defer to agencies in the FOIA context, and deference to agency expertise in national security cases is even stronger.

A requester can also challenge a Glomar response based on “waiver”—that is, by proving that the fact of the existence of records is already in the public domain and, moreover, has been “officially acknowledged.”  In the D.C. Circuit, "official acknowledgement" means that the requested records (or, in this case, the fact of those records' existence) are (1) as “specific” as those previously released, (2) “match” the information previously disclosed, and (3) were disclosed in an “official and documented” manner.  To illustrate: in National Security Archive v. Central Intelligence Agency, a court accepted a waiver argument when a requester sought biographies on seven former Eastern European heads of state and the CIA had already officially acknowledged that it kept biographies on all “heads of state.”  Widespread media coverage about the existence of records will be insufficient.  Similarly, general comments from a public official—even in testimony before Congress—may not satisfy the standard.

Q&A: FOIA to government contractor?

Q&A (2018)Allan BlutsteinComment

Q.  Can I submit a FOIA request to a company (e.g., Pratt & Whitney) that implements major contracts with the government?  I am interested in the company's data concerning employee promotion statistics and the associated merit percentage increases.

A.   Submit you may, but you should not expect to receive the records that you have identified.  The federal FOIA applies to government agencies only.  Private companies that decide to contract with the federal government do not become federal agencies for FOIA purposes.  The same holds true under most state public disclosure laws with which I am familiar.  You may be able to obtain certain contractual records directly from the government agency, of course, but I doubt such information will include the company's promotion and pay information.

Q&A: FOIA the judge?

Q&A (2018)Allan BlutsteinComment

 

Q. I suspect that a state judge had private communications' with a group or its affiliates that was party to a major lawsuit.  Is the judge's private email or other correspondence subject to FOIA requests?

A.  In 2014, the South Carolina Attorney General issued a formal opinion addressing the applicability of South Carolina's Freedom of Information Act to the judiciary: 

Our Supreme Court has not yet addressed the question of whether the judiciary or a court is a "public body" for purposes of FOIA's applicability.  However, the court has stated that restrictions upon public access to judicial records "may be based on a statute or the court's inherent power to control its own records." Ex Parte Capital U-Drive It Inc. v. Beaver. 396 S.C. 1,10, 630 S.E. 2d 464, 469 (2006) (emphasis added).  Thus, based upon the foregoing authorities, our courts might well conclude that the records of the judicial branch are not subject to FOIA.

I am not aware of South Carolina court decisions concerning FOIA's applicability to private email accounts.  I can only suggest that you confer with a lawyer licensed in the state or, for the cost of a stamp, simply submit a FOIA request to the court and see what happens.