Q&A: Educational excellence?

Q. My client has a complaint against the Department of Education for a pattern and practice of violating FOIA deadlines. My client's request received a response stating that it would take 185 days on average to respond. Can you share other complaints of slow responses from the Department of Education?

A.  If you’d like to find copies of the FOIA lawsuits filed against the Department of Education, a great resource is The FOIA Project.  On its home page, navigate to the “FOIA Lawsuits” tab on the top banner and you can search for complaints in a variety of ways, including by the defendant agency.  

Q&A: What’s in a name?

Q. Are federal credit unions subject to FOIA requests compliance? Where do I file a complaint against a federal credit union that fails to comply with a FOIA request in relation to loan(s) account information?

A. Federal credit unions are not run by the federal government (despite the name “federal”), and therefore are not federal agencies for purposes of FOIA. If you submit a FOIA request to a credit union, it would not be required to respond. The federal government does regulate national credit unions, however. To register a customer complaint, contact the National Credit Union Administration.

Q&A: Money problems

Q. Are payments to federal government contractors—e.g., dates, recipient names, and dollar amounts—exempt under FOIA?

A. This will be an unsatisfying response: “maybe, but probably not.” The burden is on the agency, of course, to establish that any exemption applies. Exemption 4 springs to mind as one possible ground for protecting some of the information you’ve inquired about, particularly the “dollar amounts.” Even if that exemption applies, however, the agency would also have to demonstrate that it “reasonably foresees that disclosure would harm” the contractor’s financial interests. That might be difficult because the total amount of a government contract is nearly always published. If the payment amounts could reveal a contractor’s hourly rates or unit prices, the government would have a stronger case for withholding.

As for recipient names, it’s unclear whether you mean the names of the contracting companies or the names of specific individuals who works for the contractors. Disclosing the former information would probably be less complicated. I use the qualifier “probably” because in one notable case that remains pending, contractors that manufactures a drug used in federal executions argue that the names of their companies are protected from disclosure under FOIA. See Citizens for Responsibility & Ethics in Wash. v. DOJ (D.C. Cir. 2023).

Q&A: He ain’t heavy, he’s my brother

Q. I'm looking to submit a Freedom of Information Law request to a district attorney’s office in New York for my brother, who is incarcerated. Can I request a records of plea offers that were offered throughout his case? Are plea offers documented, and where can I obtain such records?

A. If you wish to submit a request on behalf of your brother, you will need to obtain his express written consent, for example, a notarized document or signed under penalty of perjury. Without his written consent, your FOIL request will likely be denied on privacy grounds because the public at large is not entitled to access your brother's criminal-related files (including you).  I do not know whether district attorney offices in New York routinely make their initial plea offers in writing or orally. I presume your brother could tell you whether he (or his attorney) ever saw a written plea offer.  

Q&A: Dead or alive?

Q. My question is with respect to the required "proof of death.” I filed a FOIA request to the FBI on an Iranian exile figure whose story I deem of public interest, as he also testified in Congress and is named frequently in published U.S. sources, foremost the State Department. The FBI repeatedly denied public interest. I was able to locate the graveyard of this person and even provided a picture of the gravestone. Now the FBI, even after appeal, claims that this is insufficient. Any advice?

A. I am inclined to agree that a photograph of a gravestone is insufficient proof of death; it is merely evidence that someone with the same name is deceased. Most requesters submit a newspaper story or obituary. If you cannot find those items, consider looking for the death certificate, a police report, or even paperwork from a funeral home. I assume you received the FBI’s list of recognized sources.

Q. I understand that a grave might not be enough. This one, however, has an unique aristocratic title, so there’s no doubt that this is the individual I was looking for. Any tips how to get a death certificate as a non-relative for someone who died in California?

A. If the tombstone includes a date of birth, and you have documentary evidence that links your individual with that date, that might do the trick. You should be able to obtain an “informational copy” of a death certificate from the California Department of Health. See details here.

Q&A: The survey says . . .

Q. I saw three FOIA requests get denied in full:
1. This request for communications between the Consumer Financial Trade Commission (CFTC) and an outside entity that had received a no action letter that was later revoked was denied in full, claiming Exemption 7(A).
2. This request for all DOJ’s Office of Inspector General reports was denied in full, claiming the request doesn't describe the records sought.
3. This request for FOIA requests received by the Drug Enforcement Administration about Paul Le Roux was denied in full, claiming Exemptions 6 and 7(C).
Do these seem like reasonable denials to you? Any advice on how to proceed?

A. I'll briefly comment on each request in turn.

1. Yes, the CFTC's Exemption 7(A) denial seems reasonable to me on its face. As you probably know, PredictIt filed a lawsuit on September 9, 2022. challenging CFTC's revocation of its No-Action Letter. Public disclosure of the three categories of requested records could very well interfere with the government's legal defense in that pending case. The exemption would not, of course, apply to CFTC's August 4, 2022 letter to PredictIt, because CFTC posted it online. But keep in mind that an agency relying upon Exemption 7(A) need not justify its withholdings on a document-by-document basis, but may focus upon categories of records.

2. Either the request to DOJ/OIG is unreasonably described (i.e., vague) or the request is moot, I'm not sure which is the case. To wit, DOJ/OIG publishes reports on its website and those reports are searchable by date, keyword, type, and component. If the request seeks documents other than those published reports, it is entirely unclear to me what OIG is supposed to look for.

3. The DEA appears to have reflexively issued a privacy Glomar response, which it typically does when asked for records about a third party. An administrative appeal might be successful if accompanied by evidence that DOJ prosecutors or DEA officially acknowledged that Mr. Le Roux had a connection to DEA. First-hand evidence, e.g., press release, trial transcripts, or other court filings, would be more persuasive than media reporting. Note that even if DOJ’s Glomar response were to be defeated, that does not mean the government would be required to release responsive records. Rather, the government would be required to conduct a search, acknowledge whether records existed or not, and process any responsive records with all of the exemptions at its disposal.

Q&A: Hello from the other side

Q. When does an agency have to notify me of the tracking number assigned to my request? I know the agency can wait at least 10 days, but how long after that?

A. You are right that agencies need not assign tracking numbers to requests that will take 10 days or less to process. See 5 U.S.C. § 552(a)(7). The statute is silent, however, as to exactly when the agency must assign a request number and when it must notify the requester if a request will take longer than 10 days to process. I am not aware of a court opinion on point, nor has the Department of Justice pinpointed a deadline in any guidance.

Because an agency must provide a final determination (or seek an extension) within 20 business days, I assume that would be the latest date allowable by a court, if litigated. A number of agencies specify a time period in their regulations. The U.S. Department of Health and Human Services, for example, will “acknowledge all FOIA requests in writing within 10 working days after receipt by the appropriate office.” 45 C.F.R. § 5.24(a). And the General Services Administration, which participates in the FOIAonline system, assigns a tracking number immediately upon online receipt or no later than 2 business days. See 41 C.F.R. § 105-60.301. By contrast, the National Archives and Records Administration allows itself 20 business days to acknowledge requests. See 36 C.F.R. § 1250.26(a).

Q&A: Would a politician lie?

Q. I know Congress is exempt from FOIA, but is there any work-around to request information about a congressperson's casework with constituents out in the community? For example, if a congressperson's website says they have attended 1,000 events in their district, is there any way to FOIA a list of those events with locations and dates? Or if the congressperson says his/her staff has successfully done casework for 5,000 people (i.e. helping them connect with federal agencies, etc.), can you request a list summarizing the general nature of those cases? Or, is none of this FOIA-able because of the congressional exemption?

A. The lists you speak of would likely be maintained—if at all—only by the congressperson’s office, which as you recognized is not subject to FOIA requests. You could try to piece together constituent referrals by sending FOIA requests to federal, state, and local agencies, but that would be a time-consuming project. I try to budget 12 months or more for federal FOIA requests and am no longer submitting requests for the 2022 cycle. In my opinion, a better approach would be to arrange for a reporter ask the congressperson’s office to voluntarily provide the desired lists.

Q&A: Identities of FOIA requesters

Q. What rule or regulation provides that the identity of the requester is not confidential? And does this apply to OSHA FOIA requests?

A. Federal courts have ruled that FOIA requesters do not ordinarily expect that their names will be kept private and, therefore, release of their names would not cause even the minimal invasion of privacy necessary to trigger the balancing test under Exemption 6. By contrast, courts have decided that the identities of first-party requesters under the Privacy Act of 1974 should be protected because, unlike under the FOIA, an expectation of privacy can fairly be inferred from the personal nature of the records involved in those requests. See, e.g., Hammond v. DOD (D.D.C.) (protecting names of requesters seeking their own medical records from Walter Reed hospital).

The Occupational Safety and Health Administration appears to follow the relevant case law, as illustrated by its processing of the following 2016-2017 FOIA log.

Q&A: Who can I FOIA?

Q. Can the House Committee on Oversight and Reform be the subject of a FOIA request?

A. A congressional committee is not required to respond to a FOIA request (if that’s your question), nor must individual lawmakers. The statute requires compliance only from an “agency,” which includes “any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency.” 5 U.S.C. § 552(f).

Q. Can I FOIA a federally chartered hospital?

A. Probably not. An institution is not subject to FOIA merely because it was created or is funded by the federal government. It must function as an agency (e.g., under extensive, detailed, and virtually day-to-day government supervision), as opposed to a private sector operation.