Q&A: C’mon talk to me, so you can see . . .

Q. I received an email from OSHA asking whether I was still interested in my 2018 request, which was found after a “clean-up” of their system. I responded that I wanted the records sent to me, but I haven’t received them. What’s going on?

A.  My strong hunch is that OSHA did not have copies of the requested records on hand when it sent you the “still interested” email. It likely was waiting for your response before beginning its search. How long it will take OSHA to complete your request is impossible to predict. You might consider contacting the agency and asking for an estimated completion date. 

Q&A: Bearing the battle

Q. The Department of Veterans Affairs’ Office of General Counsel acknowledged receipt of my FOIA appeal in September 2018, but I have not heard back since. Would this case still be active or valid? What, if any, recourse do I have at this point? Do I need to start the request process over and see what the agency sends me, and then go through the appeals process again if it is incomplete?

A. Your FOIA appeal should still be pending, so you can either continue to wait for a determination, contact the department and inquire about its status, ask for assistance from the National Archives’ Office of Government Information Services, or file a lawsuit.  Note that the General Counsel’s office took an average of 72 days and as long as 746 days to respond to its administrative appeals, according to the department’s 2018 annual FOIA report.

Q&A: Open or shut case?

Q. I submitted a FOIA request into the police department to find out the status of an extortion case, but the detective assigned to it has placed it in “pending” while doing absolutely nothing with it, i.e. he's clearly been negligent. I suspect that the police department is keeping the case active in order to prevent me from seeing it and verifying his negligence. Is there a way to report this?

A. Complaints against officers can usually be filed through the local police department's website.  Alternatively, you may file a lawsuit in Superior Court in the county where the records are located to challenge the department’s denial of access.

Q&A: Start spreading the news

Q. I'm researching an old criminal case in New York City. The case files of the Governor of New York and the District Attorney of New York County, and the transcript of a Grand Jury investigation are of large importance in this case. I want to know whether these documents exist or not. May the FOIA, or any other legal principle, grant one the right to know whether or not such documents still exist? Does it matter whether I am an American citizen or not?

A. Be prepared to do some digging. For the records of former governors, I suggest contacting the New York State Archives. For older records concerning the City of New York, including court cases, you'll want to contact the Municipal Archives.  As far as I know, copies of records maintained in these archives cannot be obtained through public information requests, e.g., New York’s Freedom of Information Law. The records can be reviewed and copied on site, however. Certain records might be available online, but you’ll need to browse their digital collections.

Q&A: Inequitable delay

Q. Occasionally, I've requested records from one agency only to be told that even though the record is in that agency's possession, it is going to consult with some other governmental agency that also holds equities in the record. Often this holds up FOIA processing. Do I have to stand for that? Sometimes a copy of the record no longer even exists in the possession of the other agency, so it's not like I can file a request with both agencies, exhaust in both agencies and sue both agencies.

A. You are entitled to seek judicial review, of course, if an agency does not issue a final determination before the expiration of the statutory response deadline. So, no, you need not stand for unlawful delay caused by a consultation. As a more academic matter, an agency’s decision to consult with another agency probably does not, by itself, qualify as an appealable “adverse determination.” But I have seen agencies adjudicate appeals pertaining to the propriety of referrals, so if you wish to dispute a consultation, i wouldn’t say it can’t be done. But your chances of winning that appeal are virtually zero.

Q&A: The waiting is the hardest part

Q. I made three FOIA requests to the U.S. Attorney's Office that prosecuted me in a criminal case. I currently have a motion before the Court complaining and objecting to the defendant's document submission. This was submitted seven months ago or more. The case has been languishing for almost three years now. What can I do about this when the Court seems disinterested or worse? Is there a motion that would remedy all this and bring it to an end that gives me the documents I asked for?

A. I have reviewed the docket sheet from your case. Although it is not entirely clear which motions are still pending, but I would note that it is not uncommon for a court to take one year to issue a decision. The ultimate "weapon" for a dissatisfied federal litigant would be a petition for a writ of mandamus, which is essentially a lawsuit against the district court judge. See Rule 21 of the Federal Rules of Appellate Procedure. I am not suggesting that you file (or not file) such a petition; I just wanted to make you aware of it.

Q&A: Aim high

Q. I requested Air Force personnel records under FOIA for a living person. A FOIA officer told me that a full SSN was required in order to locate the records because the subject had a common name and the files are indexed by SSN. Does this seem right? Is there a way for me to compel a search for records without providing the SSN?

A. I have encountered this problem every so often when seeking records from the official personnel files of former civilian employees and military service members. In each instance, I had provided the first five digits of the subject’s SSN (which is available though LEXIS/NEXIS), as well as a middle name, date of birth, and approximates dates of service. You can attempt to compel a search by appealing the agency’s determination and, if unsuccessful, filing a lawsuit. The agency would then have the burden of demonstrating that it is unable to retrieve the requested records using reasonable efforts.

Q&A: Get off my lawn!

Q. I requested records from my file at the Prince William County Building Division in order to find out whether an inspector had entered my garage and shed to take photographs while I was not home. I received a voice message from a FOIA employee who stated that she could not release any records to me because I was still under investigation.

A. If you have not received a written response from the agency yet, you might consider asking the agency for a written response that identifies the specific section of the Code of Virginia upon which the agency is relying to withhold the records you requested. Assuming this matter concerns permitting and is not criminal in nature, it is unclear to me which FOIA exemption would apply. In addition to contacting the agency, you might also consider contacting the Virginia FOIA Council for free advice or dispute resolution.

Q&A: Hide and seek

Q. If I am trying to confirm the empanelment of a federal grand jury on a particular matter, would I be able to FOIA the DOJ or the FBI for records related to the case? Presumably it would be denied explicitly because criminal investigations are exempt from FOIA scrutiny. But I’m thinking that the denial letter might therefore, in turn, confirm the criminal investigation in the first place? Am I misunderstanding anything about this process?

A. You can try, but the statute allows the government to thwart requests like yours. For example, If the very fact of a criminal investigation's existence is unknown to the target of the investigation, and disclosing the existence of the investigation could reasonably be expected to interfere with enforcement proceedings, the government is authorized to inform the requester that a search yielded no responsive records. See 5 U.S.C. § 552(c)(1). Alternatively, if your request seeks records about third parties, the government can simply refuse to confirm or deny the existence of records on privacy grounds without conducting a search.

Q&A: Over the border line

Q. I sent a FOIA request [from The Netherlands] to the U.S Customs & Border Patrol on Feb. 28, 2019, and it has been stuck at the assignment stage. I was wondering if there is a way to expedite the process or file a complaint?

A. The agency’s delay entitles you to file a lawsuit in federal court. If you prefer not to take that step yet, you might consider asking the Office of Government Information Services for assistance.

Alternatively you can ask CPB to expedite your request -- that is, to move it up in the queue for faster processing . To do so, however, you would need to demonstrate a “compelling need” for expedition. You can meet that standard by showing, for example, that the failure to expedite could be expected to pose an imminent threat to life or safety or a loss of substantial due process rights. Alternatively, the agency would expedite your request if the matter at issue is of widespread media interest and affects public confidence in the federal government’s integrity.