Q&A: Please don't take my sunshine away

Q.  Are the cell phones of government employees [in Illinois] subject to FOIA requests and can they be confiscated by agency attorneys if they suspect you are taking pictures or sending a text about work-related matters?

A.  On August 9, 2016, the Illinois Attorney General issued a legal opinion indicating that all emails sent or received by agency employees that relate to government business are subject to FOIA, regardless of whether sent through a government or personal account. This would appear to be equally applicable to text messages and other work-related records maintained on personal accounts or devices.  

For further information about the AG's opinion, see this article written by the law firm Holland & Knight.  If you are an agency employee, you should confer with your agency about the how it intends to implement the AG's opinion.  

Q&A: From New York to Maryland to Texas

Q.  A friend of mine obtained some information through FOIA and has no problem sharing it with me and letting me use it.  May I use it for my benefit?  Or do I need to obtain the same FOIA information myself?  I am a resident of New York.

A.  A recipient of records through FOIA -- or the Freedom of Information Law in New York -- may disseminate those records as he or she pleases; the government does not impose any restrictions.  Therefore, unless you and your friend have a contractual agreement to the contrary, you need not make a duplicate FOIA request; you may lawfully use the information as you choose.   

Q.   Where should abuse of responding to FOIA be reported?

A.    If you have a complaint about a state or local agency in your state of residence (Maryland), you might consider contacting the Maryland Attorney General.  If you are concerned about a federal agency, the Office of Government Information Services helps requesters and agencies to resolve FOIA disputes.  

Q.  Are city governments in Texas subject to FOIA?

A.  State and local governments in Texas are subject to the Texas Public Information Act, not the federal Freedom of Information Act.  

Q&A: Florida, Florida, Florida

Q.  Concerning the election of 2016, how do I submit a FOIA request to Lee County, Florida for the ballot images of the election? Actually I would like a copy of the ballot images for the whole state of Florida, but Lee County is where I reside.

A.  You might consider submitting your request to Lee County's public records request center. Alternatively, you might consider contacting the Lee County Supervisor of Elections and asking for a sample ballot.  

Q&A: Let's go to the videotape

Q.   Can the Michigan FOIA be used to obtain the video of a public high school football game, from that high schools athletic department? I am trying to scout an opponent and they are refusing to give me the video of their game.

A.   A public high school is considered a "public body" subject to Michigan's FOIA. Although none of the exemptions enumerated in section 15.243 of the statute strike me as directly applicable to the videotape you seek, I can only speculate that the high school considers the videotape to be confidential to the same extent as its football team's written playbook -- which, if disclosed, would clearly undermine its operations.  It is also possible that the high school considers the videotape to be an "education record" protected by the Family Educational Rights and Privacy Act.  

For further information, you might wish to review the FOIA guidance provided by the Michigan Attorney General's office.

Q&A: Benghazi, Libya

Q.   The Benghazi Embassy had to have more than 4 employees/contractors in order to run an operation of that size and scope.  How many were assigned, employed, or contracted, however they're categorized.  Were they ever questioned by Congress? If yes, what did they report? If they weren't, why not?  How do I obtain this information?

A.  If you are interested in documents concerning Benghazi, you could send a FOIA request to the U.S. State Department (instructions here).  Keep in mind, however, that an agency is not required to answer questions in response to a FOIA request; it need only search for reasonably described records.  Additionally, before making a request, you might wish to browse reports and hearing testimony available from the U.S. House of Representative's Select Committee on Benghazi.  

Q&A: Good service is hard to find

Q.  Who do I serve if I am filing a FOIA lawsuit against the U.S. Customs & Border Patrol?

A.  Service of process in federal matters is governed by Rule 4 of the Federal Rules of Civil Procedure.  Note that subsection (i) addresses suits against the United States and its agencies.   You might also wish to consult the local rules of the district court in which you file the suit.   As an example, see the local rules for the U.S. District Court for the District of Columbia.  Additionally, section 5.42 of title 6 of the Code of Federal Regulations provides information about the service of summonses and complaints against the U.S. Department of Homeland Security.  

Guidance for pro se litigants is available from most federal district courts.  The U.S. District Court for the District of Columbia, for example, has published this handbook about how to file suits.

Q&A: The Real Thing?

Q.  I requested and received some financial information from the VA involving the dollar amount of transaction fees paid to our company, per year, under specific identified contracts.  You would think we had that information, but payment is collected and distributed by a third party and our accounting was managed by an outside source.  We believe that our vendor under-reported the collection of fees and diverted those.  Accordingly, we went to the agency and through a FOIA request asked for a summary by year of fees paid. Those fees turned out to exceed those reported by our vendor.  For purposes of litigation, how do I authenticate the validity of the data?

A.  The Department of Veterans Affairs can attest under seal or certify that the records are true copies.  The agency will charge a fee for this service.  For details, contact the FOIA office that processed your request.

Q&A: O Michigan Voter, Where Art Thou?

Q.  Are absentee voter applications [in Michigan] subject to FOIA and what information,  if any, will be redacted?

A.   Certain information that appears  on an absentee ballot application, such as a home address, would typically be protected in response to an access request.  In this instance, however, Michigan's election law provides that applications for absentee ballots "shall be be open to public inspection at all reasonable hours."  I infer from this provision that no information would be redacted in response to a request to inspect an application (or a FOIA request).   For additional guidance, you might wish to contact the Secretary of State's Office, which oversees elections in Michigan.         

Q&A: Go Blue?

Q.   If I were to submit a police report [in Michigan], what information on that report would be available through the freedom of information act?

A.  Michigan's FOIA contains several exemptions that a police department might rely upon to withhold information from a police report or other records.  For example, the statute authorizes a public body to withhold information "of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy." MCL § 15.243(13)(1)(a).  Additionally, a public body may withhold investigating records compiled for law enforcement purposes if disclosure would interfere with law enforcement proceedings, constitute an unwarranted invasion of personal privacy, or disclose the identity of a confidential source.  See MCL 15.243(13)(1)(b). 

Please note that the above-referenced exemptions are discretionary, meaning that a public body may release records even when it is legally entitled to withhold them.  But a police department is not likely to make a discretionary release of law enforcement information if doing so would jeopardize an individual's safety.  For further information, you might wish to contact the Michigan Coalition for Open Government, your local police department's FOIA coordinator, or a Michigan FOIA attorney.   

Q&A: It's Fort Knox

Q.   I am having a problem getting any type of response from the FOIA office at the U.S. Army Human Resources Command in Fort Knox, KY.  In December 2015 I submitted a FOIA request to the e-mail address specified on their web site. So far no acknowledgement of receiving the request. A phone call to that office was never returned.  On September 17, 2016 I submitted a written FOIA request to the address specified on their web site. So far no response acknowledging receipt of the FOIA request. Today I tried to call the individual shown to be in charge of the FOIA office. Only able to reach an answering machine. So far no response from my message.  Any suggestions as to what I can do to get a response?

A.  Based on my own experience, I would suggest contacting Tifanie L. Cropper, Government Information Specialist, U.S. Army Human Resources Command, Freedom of Information & Privacy Act Office, tel. 502.613.4832, tifanie.l.cropper.civ@mail.mil.  If you still do not receive a response, you might wish to ask for help from the Office of Government Information Services.