Q&A: A gender bender from the Land of Lincoln

Q. I am curious about the gender of interviewed candidates for leadership roles in a local school district.  Is this protected under exemption 6?

A.  Exemption 6 refers to the personal privacy exemption of the federal FOIA, which is not applicable to a local district. The Illinois FOIA, however, contains a similar privacy exemption in section 7(1)(c).  In my view, a plausible argument can be made that disclosure of the requested records would serve the public interest by shedding light on the school's hiring practices.  But the school district must also examine whether disclosure could tend to identify any rejected candidates, whose personal privacy interests are more than minimal.  Although I am not in a position to know whether disclosing the information you seek could be used to identify any rejected candidate, one study has shown that 87% of the U.S. population is identifiable by three items alone:  date of birth, gender, and zip code:  http://dataprivacylab.org/projects/identifiability/paper1.pdf.  

Q&A: hip hip, HIPAA!

Q.  I am researching water-related deaths (for example, swimming, boating, falling or being swept into lake), and I want to get information about the sobriety of the victims.  What I am looking for is whether they were under the influence of drugs or alcohol when they died.  I have been denied a FOIA [in Michigan] when I asked for toxicological results in writing.  Also, I have been told verbally that HIPAA laws would prevent release of such information.  

A. The HIPAA Privacy Rule issued by the U.S. Department of Health and Human Services (HHS) generally provides that the health information of deceased individuals is protected from disclosure for 50 years.  The following HHS guidance explains how the Privacy Rule works.  Further, HHS guidance indicates that unless state law mandates the disclosure of the information you seek, a state agency covered by HIPAA would be required to protect it in response to a freedom of information request. 

Q&A: Anticipation is keeping me waiting

Q.  What is the time frame to get a response after mailing my FOIA request?

A.  A federal agency has 10 days to acknowledge receipt of your request and 20 business days from the date of receipt to make a final determination.  If unusual circumstances exist, the agency may extend its response time for an additional 10 business days.  Additionally, an agency may toll the response deadline once if it needs to clarify your request or multiple times in order to resolve fee issues.

Q&A: Is FOIA going to the dogs?

Q.  The Animal Welfare League (AWL) in Chicago Ridge, IL is privately funded.  However, fifty-three municipalities and Cook County contract with AWL to deliver animal sheltering and claim they do not fall under the Illinois FOIA.  My argument is they are partially funded with government dollars. I  sure would like guidance to where I can information if in fact they must answer a FOIA?

A.  For an authoritative opinion, you might wish to to contact the Public Access Counselor (PAC) of the Illinois Attorney General's office.  The PAC mediates disputes between members of the public and public bodies concerning FOIA requests.  Additionally, the PAC investigates and issue opinions in response to "requests for review" submitted by members of the public when a FOIA request has been denied by a public body. 

Q&A: appealing the G-man

Q.  With an FBI appeal response of " Only partial records will be disclosed . . . further disclosure might jeopardize operational procedures," I was directed to contact the OGIS division of the National Archives, and failing that, litigate in U.S. District Court.  Is there any other way I might expedite this process?

A.  If you have exhausted the administrative appeals process, you are entitled to file a lawsuit immediately; you are not required to mediate your dispute via OGIS.  Alternatively, you can submit a request for reconsideration of your appeal.  Although requesters are not entitled by law to seek reconsideration, in my experience the Department of Justice will adjudicate them.    

Q&A: The eyes of Texas are upon you

Q.  I submitted a FOIA form to view a police dash-cam video regarding a traffic citation [in Texas].  I was told that I cannot see the video unless I plead guilty and pay the fine or if I go to trial.   Is this accurate?

A.  I suggest that you contact the Texas Attorney General's office in order to receive the most complete and accurate answer to your question.  The following opinion letter from that office concerning dash-cam video might also be instructive.  

Q&A: Father's military service records

Q.  How do I find my father's military record, which includes information about him being a POW in Germany during WWII and serving in Korea?

A.  You can request your father's military service records from the National Archives and Records Administration (NARA). Just follow these instructions from NARA's website.   

Q&A: NCIS Chicago

Q.   Is there any information or warrant for [name and date of birth redacted] born in Chicago that pertains to the navy criminal investigation unit?

A.   To request records from the Navy Criminal Investigative Service (NCIS), follow these instructions from the agency's website.  Please keep in mind that if you are not the subject of the request (unclear from submission), the NCIS is likely to refuse to confirm or deny the existence of any responsive records in order to protect the subject's privacy interests.  If you are requesting records about yourself and the NCIS is currently investigating you, the agency might withhold certain investigatory records under Exemption 7(A).  Alternatively, if the NCIS reasonably believes that (1) you are unaware of its investigation and (2) disclosing the existence of its investigation will cause harm, the agency would be permitted to invoke the (c)(1) exclusion and inform you that no investigatory records exist. 

Q&A: Fly or No-Fly?

Q.  Can you check whether my ex-husband and I appear on any government watch lists?  I ran a background check which showed nothing bad, but they listed my ex-husband as having a possible criminal driving or other criminal activity (which is false).  I do not want to pay airline fare to visit my cousin in Massachusetts if I am going to be turned away! 

A.   I can only suggest that you contact the U.S. Department of Homeland Security "Traveler Redress Inquiry Program"(TRIP), which is designed to assist individuals "who have inquiries or seek resolution regarding difficulties they experienced during their travel screening at transportation hubs." The following guidance from the American Civil Liberties Union might also be of interest.  

Q&A: Penalties for violating FOIA

Q.  What are the potential penalties for violations of FOIA, for example: (1) refusing to release FOIA eligible documents, (2) intentionally failing to record FOIA documents, (3) intentionally deleting massive numbers of FOIA documents, and
(4) excessively slow to release FOIA documents.  Have any federal employees been convicted of violating the FOIA? Who is the highest ranking federal employee to be convicted?

A.  The FOIA itself provides for the possibility of sanctions against an individual agency employee under limited circumstances.  Specifically, if a district court assesses attorney fees against the federal government and finds that the agency acted "arbitrarily or capriciously" in improperly withholding records, the U.S. Office of Special Counsel must "initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding."  5 U.S.C. § 552(a)(4)(F).  The agency must then implement whatever "corrective action" that the U.S. Office of Special Counsel recommends.  Id.     

Further, federal employees may be subject to criminal penalties for the willful and unlawful destruction, removal, or private use of federal records, See 18 U.S.C. § 2071.   

The U.S. Office of Special Counsel has not initiated any proceedings under 5 U.S.C. § 552(a)(4)(F) between 2008 and 2015, according to annual reports submitted by the U.S. Department of Justice to Congress.  I am not aware of any FOIA-related criminal convictions or prosecutions.