Q&A: Fish out of water!?

Q. If a federal government agency only holds records for 30 days yet for tax purposes contractors with that agency must hold those same records for 6 years, can I FOIA the contractor instead?

A. Only federal agencies are required to respond to FOIA requests, so the answer to your question is no. If the records you seek are maintained the contractor for the agency’s recordkeeping purposes, however, those records would be considered “agency records” and the agency would be required to process them. See DOJ/OIP, Treatment of Agency Records Maintained For an Agency By a Government Contractor for Purposes of Records Management, FOIA Post, July 2008.

Q&A: It's called delay, delay, delay

Q. What are the consequences for a government agency which doesn’t meet the deadline (by a few months) for an administrative appeal for a declined FOIA request?

A. Assuming we’re talking about a federal agency, a requester is entitled to file a lawsuit when the agency misses its deadline to issue a final determination in response to an administrative appeal. No other legal relief is available under the statute. Should you file a lawsuit and substantially prevail, you may be able to recover any attorney’s fees and costs. The agency’s delay in responding would not, by itself, entitle a FOIA plaintiff to any recovery, however.

Q&A: Stars and Stripes Forever

Q. Can a government agency make a rule that would require a certain set of persons making a FOIA request to satisfy different requirements than any other requesters simply because the certain set is made up of U.S. Government employees? Perhaps more simply and broadly: Can an agency limit the private FOIA rights of any federal employee? For example, DoD has advised its FOIA liaisons to administratively close as "not a proper FOIA request" any request filed by a member of a group of DoD employees if the person fails to "demonstrate prior approval" from a government supervisor to make the request. This seems unenforceable on several grounds: first because it hinges on the identity of the requester; second because it involves an inquiry into the "circumstances" of the request; and third because it seems the policy is not based on published FOIA rules.

A. Whether a reporter for Stars and Stripes (S&S) may submit FOIA requests to federal agencies is an interesting issue, though not a new one. Indeed, the newspaper’s ombudsman addressed the problem in an instructive article published in 2016. In sum, we agree that an agency may reject a FOIA request if it is submitted on behalf of S&S, because the newspaper is a component of a federal agency and federal agencies are precluded from making FOIA requests. No regulation or rule is required to be published for an agency to enforce this statutory limitation.

To circumvent the statute, an S&S reporter might attempt to submit a request in his or her personal capacity or on behalf of a different media organization. But an agency is entitled to inquire, for fee purposes, how a requester intends to use requested records and it need not blanketly accept the requester’s assertions. If, for example, an S&S reporter claims to be working on behalf of a different media outlet, an agency may require evidence to that effect—for example, a copy of an agreement with that outlet. And if an S&S reporter is required to get prior approval to engage in outside reporting activities, the absence of such approval would undermine the reporter’s claim.

Q&A: And I’ve been waiting such a long time

Q. After filing a request for review with the Illinois Attorney General's Office, due to what I believed were unlawful redactions to a FOIA request, the AG agreed and determined that the Chicago government body improperly withheld certain information. It has been nearly four months since the AG's determination and yet the government body still refuses to provide the sought information. Is there any recourse that will not cost me a small fortune in attorney fees?

A. If the Attorney General’s Public Access Counselor has issued an opinion ordering a public agency to produce records, the public agency may appeal the opinion to the circuit court. If the public agency does not appeal the opinion and fails to disclose the records as ordered by the opinion, the Attorney General’s office may sue the public agency to enforce the opinion. Thus, you might wish to notify the Attorney General’s office of the status of your request.

Q&A: Par for the course?

Q. Can I use FOIA to obtain Foreign Service Institute School of Professional and Area Studies curriculum and syllabi? I do not think this information is classified, but rather “For Official Use Only.”

A. The Foreign Service Institute (FSI) is a component of the Department of State. Thus, FSI records are subject to FOIA requests. Whether the content of those records can be released in full or in part, however, is not something that I can accurately predict. I have not found a federal court opinion in which access to FSI course material was disputed. Note that you would not be the first person to make such a request. Here is a request that was filed about three weeks ago:

Q. As this is my first FOIA request, what is a typical window for expecting a response? Further, will I receive a response from the State Department no matter what, even if it’s to say my request cannot be filled?

A. The State Department is notoriously slow in responding to FOIA requests. In fiscal year 2019, the Department took an average of 119 days to complete "simple" requests and an average of 307 days to complete "complex" requests. And the pandemic has worsened the Department's response times. The Department should first send you an "acknowledgment" letter and assign a reference number to your request. That is supposed to occur within 10 business days, but in my experience it's likely to take one month or more. Even if all of the records you requested are exempt, the Department will (eventually) issue a substantive response identifying the FOIA exemptions and notifying you of your appeal rights.

Q&A: Say your prayers

Q. Can I make a request about the disbursement of monies donated to my church in New York? I suspect a cover up of waste, fraud, and financial abuse of a widow’s endowment.

A. New York’s Freedom of Information Law (FOIL) applies to government agencies, not to private entities..  Thus, your church would not be legally obligated to respond to your FOIL request.  And unlike most tax-exempt organizations, churches generally are not required to file tax returns. So it is unclear to me how you would be able to access any of the church’s financial information from a government agency.  

Q&A: The administrative record

Q.  I appealed an agency’s Exemption 5 redactions and the agency remanded my request because the redactions “contain information similar to that which has been made public in recent months.” The remanded and less-redacted document I later received showed that the previously redacted information shouldn’t have been redacted in the first place. It’s also unclear where, how, or when roughly 90 percent of the new information was “made public in recent months.”

Aren’t agencies required to review FOIA appeals based on the administrative record established at the time the appeal was received? And wouldn’t this preclude the agency from considering new information that “has been made public in recent months”? I ask because I’m planning to appeal again, since the remanded version still contains many Exemption 5 redactions. And if it’s clear that the previously withheld info shouldn’t have been withheld in the first place, and if the agency’s reason for now releasing that information is inapposite, how do I know the remaining redactions aren’t also improper?

A. Agencies may take into account just about any information before issuing their administrative FOIA appeal decisions.  In fact, agencies may change their positions on the applicability of exemptions even after they’ve been sued.  The concept of an "administrative record" in FOIA is limited to only a few issues at the litigation stage--for example, expedited processing and fee waivers.   A requester probably cannot know with absolutely certainty whether an agency has properly processed requested records.   Short of litigation, however, you might consider asking the Office of Government Information Services for assistance.  

Q&A: Are you exhausted?

Q. I filed a lawsuit against a federal agency because its response was several months late. The agency’s response letter miraculously showed up a few days later by snail mail. The envelope was postmarked on the same day I sued the agency and its letter was dated one week earlier. Will the court dismiss my case for not exhausting my administrative remedies?

A. Maybe. After an agency misses its response deadline, it can cure that deficiency by actually responding before a requester files a lawsuit. See Oglesby v. Dep’t of the Army, 920 F.2d 57 (D.C. 1990). In this case, the agency reached a determination before you filed suit, but it did not transmit its determination beforehand. Had the agency mailed its response letter one or more days earlier, I’d say your prospects would be much dimmer. The fact that you received the agency’s letter only after you filed suit is not dispositive in your favor, though a number of district courts have declined to dismiss cases on exhaustion grounds where the plaintiffs raised genuine disputes about whether or when they received agency responses. See, e.g., Houser v. Church, 271 F. Supp.3d, 197 (D.D.C. 2017); Pinson v. DOJ, 69 F.Supp.3d 125 (D.D.C. 2014); Thomas v. OCC, 684 F.Supp.2d 29 (D.D.C. 2010).

Q&A: Abu Ghraib case

Q. Does ACLU v. DOD (S.D.N.Y. 2005) hold that Glomar responses can be outweighed by public interest? The Wikipedia page on the case says that, but I reviewed the Glomar section of the opinion and didn’t see it.

A. I agree with you that the court did not consider public interest in deciding the propriety of the agency’s Glomar claims, which were issued pursuant to Exemptions 1 and 3. The last sentence/paragraph of the Wikipedia entry is awkwardly written, but it does not appear to me to say differently. The court did consider public interest in deciding whether to release detainee photographs that the agency acknowledged existed and withheld under Exemptions 6, 7(C), and 7(F). On those claims, the court agreed that the ACLU had the better of the argument.

Q&A: Service with a smile

Q. If I name cabinet agency ‘x’ as the only defendant in a FOIA lawsuit, do I serve the agency’s general counsel and the local U.S Attorney in addition to the agency at the 950 Pennsylvania address?

A. You’ll have to serve three entities: (1) the Attorney General (at 950 Pennsylvania Ave.); (2) the U.S. Attorney’s Office in the district where the suit is filed'; and (3) and the cabinet agency. See this handy guide from the Reporters Committee for Freedom of the Press: