FOIA Advisor

Q&A (2019)

Q&A: The waiting is the hardest part

Q&A (2019)Allan BlutsteinComment

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&A (2019)Allan BlutsteinComment

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&A (2019)Allan BlutsteinComment

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&A (2019)Allan BlutsteinComment

Q. If I am trying to confirm the impanelment 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 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&A (2019)Allan BlutsteinComment

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.

Q&A: Come on, come through New York

Q&A (2019)Allan BlutsteinComment

Q. Do the federal FOIA laws apply to local municipalities in the state of New York? Are there penalties when they do not respond with complete information?

A. No, the federal statute is irrelevant to records maintained by state or local agencies. Agencies in New York must comply with Article 6 of the Public Officers Law, also known as the Freedom of Information Law (FOIL). An agency is not subject to “penalties” for failing to comply with FOIL. If a requester substantially prevails in a lawsuit, however, the requester would be entitled to attorney’s fees and other litigation costs if the court finds that the agency had “no reasonable basis” for denying access.

Q&A: Discriminating against me, EEOC?

Q&A (2019)Allan BlutsteinComment

Q. EEOC denied my FOIA request for my own case. It said cases are not public record, and only become public record if a lawsuit is filed in federal court. The response cited Exemption 3 and the Civil Rights Act of 1964. How can I get a copy of my own file?

A. The agency’s response is consistent with the public guidance EEOC provides to FOIA requesters (quoted below) -- i.e., charging parties have a narrow window to access their files prior to filing a discrimination lawsuit. Once that time period expires, those files are inaccessible until a lawsuit is filed.

5. Can my request for a copy of my charge file denied?

Yes. The two most common reasons for denying a request are:

  • If you request the file before EEOC has completed its investigation and issued a notice of right to sue, the request will be denied pursuant to exemption (b)(7)(A) of the FOIA. This exemption allows us to deny a request to prevent interference with an ongoing proceeding. Our concern is that the premature release of documents while the file is open may interfere with the EEOC investigation; or

  • If you received a Notice of Right To Sue but did not use it within 90 days to access your file or to file suit, the request will be denied pursuant to exemption (b)(3). After the time to file a lawsuit expires, the CP is considered a member of the public. Sections 706(b) and 709(e) of Title VII of the Civil Rights Act of 1964, as amended, (Title VII), Section 107 of the Americans With Disabilities Act (ADA) and Section 206 of the Genetic Information Nondiscrimination Act (GINA) prohibit disclosure of charge files to members of the public. If you request a file after the NRTS has expired, you will be asked to present a copy of your court complaint, so that we can verify that we may disclose the file to you.

Q&A: Stormy weather

Q&A (2019)Allan BlutsteinComment

Q. I filed a FOIA with NOAA in March of last year and the FOIA request has yet to be fulfilled. I reached out to inquire about the delay, taking great pains to be very patient with the process. If possible, I'd like to know how to proceed in filing an official complaint. 

A. If by "official complaint" you mean filing a lawsuit, the FOIA provides four options as to where that suit may be filed: (1) in the federal district in which you live; (2) in the federal district where you have your principal place of business; (3) in the federal district in which the agency records are located; or (4) in the District of Columbia.  You may file a complaint with or without the assistance of an attorney.  If you wish to file a lawsuit by yourself, for example in the U.S. District Court for the District of Columbia, see the following court guidance on how to proceed:   https://www.dcd.uscourts.gov/pro-se-help.  

Short of a lawsuit, you can request assistance from the Office of Government Information Services, aka the "FOIA Ombudsman," which is a component of the National Archives and Records Administration.  Here are instructions from OGIS about how to file a request for assistance:  https://www.archives.gov/ogis/mediation-program/request-assistance.

[P.S. An agency’s FOIA Public Liaison also may be a useful resource for requesters who encounter issues with their requests. In this case, the requester noted an extensive history of interactions with agency personnel, which was omitted from the original post.]

Q&A: In the beginning . . .

Q&A (2019)Allan BlutsteinComment

Q. When was the first FOIA request submitted? To which agency? And what records were sought?

A. I would guess that the first request was submitted on July 4, 1967, when the statute became effective. Given the passage of fifty-plus years, however, I doubt any documents exist that could definitively answer that or your other related questions — or if they do exist, they are buried within the National Archives.

Q&A: I'm sticking with the Union

Q&A (2019)Allan BlutsteinComment

Q. Is a government contractor's collective bargaining agreement (CBA) exempt from FOIA?

A. Maybe. If the CBA is already in the public domain, then it is not exempt. If the CBA is not in public domain and it was was submitted to a federal agency as part of a contract proposal, the CBA would be fully exempt under Exemption 3 if the proposal was not successful. If the proposal was successful, however, Exemption 3 would protect any portion of the proposal that is not set forth or incorporated by reference in the contract   See generally OIP's guidance on contract proposals.

If Exemption 3 does not resolve the matter, Exemption 4 would certainly be in play, particularly if the CBA includes information such labor rates.  The agency would then need to initiate the "submitter notice" process per Executive Order 12600 and agency regulations.