Q&A: FOIA to government contractor?

Q.  Can I submit a FOIA request to a company (e.g., Pratt & Whitney) that implements major contracts with the government?  I am interested in the company's data concerning employee promotion statistics and the associated merit percentage increases.

A.   Submit you may, but you should not expect to receive the records that you have identified.  The federal FOIA applies to government agencies only.  Private companies that decide to contract with the federal government do not become federal agencies for FOIA purposes.  The same holds true under most state public disclosure laws with which I am familiar.  You may be able to obtain certain contractual records directly from the government agency, of course, but I doubt such information will include the company's promotion and pay information.

Q&A: FOIA the judge?

Q. I suspect that a state judge had private communications' with a group or its affiliates that was party to a major lawsuit.  Is the judge's private email or other correspondence subject to FOIA requests?

A.  In 2014, the South Carolina Attorney General issued a formal opinion addressing the applicability of South Carolina's Freedom of Information Act to the judiciary: 

Our Supreme Court has not yet addressed the question of whether the judiciary or a court is a "public body" for purposes of FOIA's applicability.  However, the court has stated that restrictions upon public access to judicial records "may be based on a statute or the court's inherent power to control its own records." Ex Parte Capital U-Drive It Inc. v. Beaver. 396 S.C. 1,10, 630 S.E. 2d 464, 469 (2006) (emphasis added).  Thus, based upon the foregoing authorities, our courts might well conclude that the records of the judicial branch are not subject to FOIA.

I am not aware of South Carolina court decisions concerning FOIA's applicability to private email accounts.  I can only suggest that you confer with a lawyer licensed in the state or, for the cost of a stamp, simply submit a FOIA request to the court and see what happens.  

Q&A: A New York state of mind

Q.  I am seeking e-mails sent or received through a State University of New York account that meet certain specific parameters. Generally speaking, they would include financial arrangements, including research funding, made between a retired employee and employees or representatives of outside corporations or organizations organizations.  Are you aware of any state-level litigation that has addressed this issue?

A.  Not offhand, though the general issue of what constitutes a public or agency records is frequently litigated.  In that respect, the mode of communication is a less significant factor than the content and purpose of the communication.  Thus, business-related emails sent through private accounts are more likely to be considered agency records, and personal emails sent through agency accounts are more likely to be considered non-agency records.  If the retired employee in your scenario was acting on his own behalf rather than on behalf of the university, I do not believe the employee's mere use of a university email account would obligate the university to search for the records you seek.

If you would like to explore this matter further, you might wish to browse the advisory opinions of the New York Department of State Committee on Open Government or contact the committee's director.   

Q&A: Show me the transcript

Q.   Do I need to go through the FOIA process to receive a court transcript of a criminal case that happened in Missouri a couple of years ago? 

A.  No.  Courts typically have their own procedures for obtaining records that is separate from FOIA.  Here is written guidance about obtaining court records in Missouri: http://www.dmlp.org/legal-guide/missouri-state-court-records.

Q&A: Empire State FOIL Troubles

Q.  I submitted a FOIL request to a New York state agency at the end of March 2017.  The agency  hasn't completed processing my request, but claims that it cannot locate any responsive records.  I sent the agency copies of some documents related to the communications that I'm requesting.  It still claims it cannot find anything.  What can I do next?

A.  The New York Department of State Committee on Open Government provides extensive guidance on its website about New York State's Freedom of Information Law, including the text of the statute, Frequently Asked Questions, and a helpful summary guide - "Your Right to Know."  As a preliminary matter, you may want to consult these resources to learn about requesting agency records in New York.

You indicated that the agency hasn't issued its determination on your request, so you likely need to file an appeal for failure to respond in a timely manner.  Under New York state law, an agency typically has between five and twenty business days to provide you with a response.  If the agency has, in fact, issued its determination, but claims it cannot locate any responsive records, you still need to file an appeal and explain why you think the agency failed to conduct an adequate search.  Attaching evidence such as the records you already sent to the agency would be helpful in such an appeal.  Following the agency's determination on your appeal, you could then seek judicial relief in state court.  You may also consider continuing to work with the agency to locate the requested records or, alternatively, contacting the Committee on Open Government to request an advisory opinion on your case.

Q&A: Where art thou, FOIA lawyer?

Q.   I know you cannot recommend anyone particular law firm or attorney but can you direct me as to what kind of practicing attorney to look for?  I'm completely clueless on where to start.

A.  FOIA attorneys often work as solo practitioners or at public interest organizations or small law firms.  Public interest groups are more likely to accept cases that implicate broad issues, as opposed to ones vindicating only the personal interests of the requester.  Many of the more experienced FOIA attorneys practice in the D.C. area, given the volume of litigation there.  You might want to browse the database of FOIA lawsuits on FOIA Project to get a sense of which attorneys are handling cases like yours.

Q&A: I just called to say . . .

Q.  Recently I filed a FOIA request/complaint to the Salisbury, NC police department, which arrested me for DWI.  At trial, two police officers testified that they dialed a telephone number for me and overheard me tell my girlfriend that I was sorry for wrecking her vehicle.  But I did not ask the police to dial any number for me. And I did not speak with my alleged girlfriend.  In fact, I spoke with a lawyer.  I first spoke to the lawyer's wife and she let me talk to her husband, the lawyer.  I was convicted and sentenced to 1 year in prison.  When I got out, I tried my best to obtain records about the telephone number and was denied at every level.  So, I filed a FOIA request to the police department and the sheriff's office to obtain records concerning the telephone number.  I have been given the run around.  

A.  Because your criminal case has been settled for more than a decade (see court opinion), the main issues here are whether the information you seek was reduced to writing and whether such documentation still exists.  If so, I am not aware of any statutory exemptions that would prevent the local law enforcement authorities from releasing the requested information to you. 

Q&A: Border Crossings

Q:  I am a permanent resident.  How can I request records documenting my arrival and departure to and from the United States for each time I've traveled outside the country?

A.  Records concerning entry and exit from the United States after 1982 are available through the Department of Homeland Security's Customs and Border Protection ("CBP") agency.  Further information about how to submit a FOIA request to CBP is available here or through FOIAOnline.  Please remember that you'll need to provide enough information (e.g., date of birth, alien number, etc.) to establish your identity.  This will help the agency to locate your records and also satisfy its obligations under the Privacy Act.  If you still have questions, consider calling the CBP FOIA Office at (202) 325-0150 (Mon. - Fri., 8am - 5pm EST). 

Q&A: Illegal political leak?

Q.  I was a candidate in a recent election for public office.  My former employer, who was an opposing candidate, released a report from my personnel file through the FOIA.  According to everything I have read, it was illegal for him to release this report without my permission.  Is this correct?

A.  Probably not.  It is true that the Virginia FOIA authorizes an agency to withhold personnel records in response to a request, except for records of an employee's position, job classification, salary (if over $10k), and expense reimbursements (all of which must be disclosed).  The Virginia FOIA, however, does not prohibit the dissemination of personnel records to third parties in response to a request.  See, e.g., Virginia Freedom of Information Council, Advisory Opinion 28-01 (May 31, 2001).  For further guidance, you might wish to contact the Virginia Freedom of Information Council.

Q&A: Crash and burn?

 Q.  I sent photographs to Langley AFB in April 1998 that were forwarded to the safety office of the commander.  The materials were dated September 14, 1997, and I received a thank you letter from the commander. Can I request by FOIA or have any right to any report or review of my materials by the safety office?  The date is significant because it was the date that the F-117A stealth fighter crashed in Maryland.

A.  The Air Force might not still possess these records after two decades, but no harm in making a request.  For instructions on how to submit a request, see the Air Force's Freedom of Information Act web page.