Q&A: Getting into the weeds

Q.  The EPA denied my request for the "other" ingredients on a generic Glyphosate product label.  I was injured by this product, but EPA has determined that the information is confidential.  

A.  A product's formula may very well be protected under Exemption 4 as a trade secret or confidential business information.  A trade secret, for example, has been held by the D.C. Circuit to mean "a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort."  Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1288 (D.C. Cir. 1983).

For additional guidance on Exemption 4, you might wish to consult the U.S. Department of Justice's Guide to the Freedom of Information Act.   

Q&A: As Time Goes By

Q.    I am researching a crime that occurred in Vietnam in 1970.  The victim was a civilian.  The Army has disclosed records, redacted substantially using exemptions (b)(6) and (b)(7)(C). Since these records are 46 years old, does FOIA caselaw provide a greater burden on the government to justify non-disclosure?  Many records are witness statements, interviews, investigative reports, and medical records.

A.  The passage of time does not heighten the burden of proof that the government must carry with respect to Exemptions 6 and 7(C).  Indeed, DOJ has opined that "[a]s a general rule, the passage of time serves to increase an individual's privacy interests, even in personal information that was once publically [sic] available."  U.S. Dep't of Justice, Guide to the Freedom of Information Act, Exemption 6, p. 36 (last updated Jan. 10, 2014).    

If you are familiar with any of the third parties involved, it might be worthwhile to investigate whether any are deceased, which would likely result in the disclosure of additional information.  An agency may presume that an individual who would be 100 years old at the time of the request is no longer alive.  See Schrecker v. DOJ, 349 F.3d 657, 662-65 (D.C. Cir. 2003) (upholding FBI's 100-year rule).  Keep in mind that that the D.C. Circuit requires agencies to take basic steps to investigate the life status of third parties.  See Johnson v. EOUSA, 310 F.3d 771, 775-76 (D.C. Cir. 2002).  

Q&A: Liar, liar, pants on fire?

Q.  If a local fire department receives federal grant funds, is it bound to follow the federal FOIA?  Can the FOIA request be for "information" that isn't printed on a document or recorded on some other type of record, but is known by government employees as organizational knowledge?  If the fire department is telling taxpayers that it needs new furniture and a bigger administration building, can taxpayers submit a FOIA request to personally view the current structure and furniture and create their own photographic document, thus obtaining the FOIA requested information? 

A.  Receiving federal funds would not obligate a local fire department to follow the federal FOIA. The department may be subject to the state's public records law, however.  Further, the federal FOIA is not an "information" law, despite its title.  The FOIA applies to agency records only.  A federal agency is not required to answer questions, create new records, or provide explanations about existing records in response to a FOIA request.  Nor does the federal FOIA require an agency to accommodate a requester's interest in taking photographs of federal property.  A state public records law is unlikely be more helpful.  

Q&A: Carry me home to Virginia

Q.  Does the FOIA apply to homeowners associations in Virginia?

A.  An HOA is not likely to be subject to Virginia's FOIA, which applies to public (not private) bodies.  Similarly, the federal FOIA applies to government agencies, not private entities.  Please note that Virginia real estate laws might provide access to certain HOA records.  We can only recommend that you consult with a real estate lawyer licensed in Virginia for authoritative legal advice.    

Q&A: Hi, hi, hey . . . the Army's on its way

Q.   I am having trouble figuring out how to request my father's military records.  I went to the foia.gov site and it's a bitch to navigate.  Sometimes I'd press on a button and nothing would happen...couldn't understand exactly how to find where I needed to go.  I put U.S. Army in a search bar and the Army websites would come up.  I was told I could make requests from the FOIA to search for the records, but how?

A.  Here is the standard request form for military records:  http://www.archives.gov/research/order/standard-form-180.pdf.  The instructions on the last page indicate where to submit your request, which depends upon the branch of service and time of service.

Q&A: A legion of records?

Q.  Does an American Legion Post in Michigan have to comply with a FOIA request for financial records?

A.  The American Legion is a nonprofit veterans organization that was federally chartered in 1919.  I do not believe that the American Legion qualifies as a "public body" under Michigan's FOIA or as an "agency" for purposes of the federal FOIA.  You can, however, obtain the Legion's 990 Form (i.e., income tax return) directly from the organization or through Guidestar or the Internal Revenue Service. 

Q&A: certified or certifiable?

Q.   I am in receipt of a FOIA request where the requester is seeking a copy of the certificate list for a vacancy announcement that was posted.  Please note the requester did not apply for this position.  Is he eligible for a redacted copy with the list of eligibles? 

A.  If anyone has been hired for the position, the agency could release the name of that employee.  Disclosing the name or personal identifying information of job applicants who have not been hired, however, would invariably constitute a clearly unwarranted invasion of their privacy.  

Q&A: Into the woods and down the dell

Q.  I own 30 acres bordered on two sides by federal forest land.  I have asked the local U.S. Forest for their access for the public to this area and they refused to give me that information.  Who and how do I file for this information?

A.  If you seek records from the U.S. Forest Service, please see its FOIA web page for instructions.  

Q&A: Winter, spring, summer, or fall . . . all you've got to do is call

Q.   I have been a U.S. citizen for approximately 50 years, yes 50 years!!! I lost my naturalization papers which I need in order to get another hard copy of my SS card, which I also lost.  I was told by the USCIS office to submit a foia request while waiting for my papers and should not take longer than 30 days. It has now been 60 days and I am still on number 4 of 10 when I check the status.  Last week I was 3 of 10, but when I checked again the end of the week I had gone down to 4.  EXTREMELY FRUSTRATING!!!!!!!!!! There is a state of urgency no one appears to care about. I don't want a copy to frame and hang on my wall, I need it to work!!!! How can I communicate with an actual person in that department??!!!

A.  The contact information for the FOIA Public Liaison of the United Stated Citizenship and Immigrations Services is as follows: 

National Records Center, FOIA/PA Office
P. O. Box 648010
Lee's Summit, MO. 64064-8010
FOIA Officer/Public Liaison: Jill Eggleston
Phone: 1-800-375-5283 (USCIS National Customer Service Unit)
Fax: 816-350-5785
E-mail: uscis.foia@uscis.dhs.gov

I note in this context that FOIA backlog at USCIS was significant enough to trigger a putative class action lawsuit in 2015.  

Q&A: Can the DEA just say no?

Q.  Can the Drug Enforcement Administration (DEA) closed investigations be FOIAed? I submitted a DEA FOIA request seven days ago and I've yet to receive an acknowledgement that my request was received.

A.  Nearly all agency records are subject to FOIA, though not all may be released, of course. The fact that a DEA investigation is deemed "closed" merely affects whether DEA may rely upon Exemption 7(A) to withhold records.  If the investigation concerns a third party, the DEA is likely to withhold certain records under Exemptions 6 and 7(C) -- and based upon my experience reviewing DEA records, Exemptions 7(D), 7(E), and 7(F) -- or it might even refuse to confirm or deny the existence of records depending on the circumstances.   

If your request will take longer than ten days to process, the agency is required provide you with an individualized tracking number -- which is usually transmitted via an acknowledgment letter.  If you have a question about the status of your request, here is DEA's contact information:  Tel. (202) 307-7596 (Hotline); Fax: (202) 307-8556
Email: DEA.FOIA@usdoj.gov.