Q&A: Come on, come through New York

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. 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. 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. 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. 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.

Q&A: The Longest Day?

Q. I requested the results of an “AR 15-6” investigation by the U.S. Army in July 2018. How long does a FOIA request generally take?

A.  If an AR 15-6 investigation is as detailed as a typical federal prosecution file, then the Army’s delayed response is unsurprising.  I cannot accurately predict, however, how much longer it might take.  Note that the Army receives approximately 25,000 requests annually.  Although many of them are "simple" requests that closed within two months, "complex" requests such as yours invariably will take longer. You might consider contacting the Army’s FOIA Requester Service Center at (571) 515-0306. If you are not satisfied with the response from this center, contact the Army FOIA Public Liaison, Alecia Bolling, at (571) 515-0306.

Q&A: Figuring out Social Security

Q. I am trying to find out a way I might be able to complete a FOIA request with the Social Security Administration for a deceased person’s records, besides the two standard options made available on SSA’s website for requesting a deceased individual's social security record. Also, Is there some way that I could request certified copies?

A. You can send a FOIA request to the Social Security Administration via the government website FOIAonline. Alternatively, you may mail a request to: Social Security Administration, Office of Privacy and Disclosure, 617 Altmeyer Building, 6401 Security Boulevard, Baltimore, Maryland 21235. No special form is required. In either case, I would suggest submitting proof of the subject’s death (e.g., obituary, death certificate), or evidence that the deceased was born more than 100 years ago.

Neither the Freedom of Information Act nor SSA's FOIA regulations require the agency from certifying copies of responsive records.  But SSA may agree to provide that service. See  20 C.F.R.  § 402.165(e) (“Certifying that records are true copies. This service is not required by the FOIA. If we agree to provide it, we will charge $10 per certification.)

Q&A: ‘Cause you gotta have faith

Q. Are you aware of a FOIA case in the Ninth Circuit in which the agency was cited for bad faith? Or a Ninth Circuit case that defines what bad faith is for an agency search?

A. Two case might be of particular interest to you: (1) Lion Raisins, Inc. v. U.S. Dept. of Agriculture, 636 F. Supp. 2d 1081 (E.D. Cal., 2009) (noting agency’s absence of good faith with respect to its search); and (2) Powell v. United States Dept. of Justice, 584 F. Supp. 1508 (N.D. Cal. 1984) (finding that agency’s lack of good faith, among other things, warranted in camera review of disputed records).  There are innumerable FOIA cases originating from the Ninth Circuit in which courts have rejected allegations of agency bad faith.  See, e.g., Kucernak v. Federal Bureau of Investigation, 129 F.3d 126 (9th Cir. 1997); Bothwell v. Brennan, No. 13-cv-05439 (N.D. Cal. 2015).

Q&A: Snap, crackle, and sue

I am a consultant who helps retailers who are enrolled in SNAP (aka food stamps). A retailer based in New York received a USDA letter that accused the retailer of food stamp trafficking. I submitted a FOIA on the retailer’s behalf that asked for all documents, photos, etc of the case write up. After five months, USDA responded with documents but many were heavily redacted. So I did an administrative appeal within 90 days.

Last week, after 350 days, USDA denied my administrative appeal by essentially using the sample language as before Exemption 5/7 etc. Its response indicated that I can file for judicial review. I looked at other FOIA websites and they seem to state we can do this ourselves and have provided very helpful templates which I plan to use. But, I have a number of questions that these websites do not address.

Q1. Do I even need to go judicial? Can I just resubmit a new FOIA again to USDA/FNS and restart the process? 
A. You may submit a duplicate request, of course, but the agency will likely send a duplicate response or simply refer you to its earlier response. If you do not wish to file a lawsuit, you can try to ask the agency to reconsider its appeal response. Note that neither the statute nor the agency’s regulations entitle requesters to seek reconsideration of appeals, but the agency is permitted to respond to such requests as a matter of discretion. Additionally, you might wish to seek assistance from the Office of Government Information Services.

Q2. If I appeal judicially, do I have six years to file with the District Court?
A. Not quite. The applicable statute provides that "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." 28 U.S.C. § 2401(a). A FOIA claim "accrues" when a party has actually or constructively exhausted all administrative remedies. Thus, your claim accrued—and the six-year clock began to run—twenty business days after USDA received your administrative appeal, not on the date USDA issued its appeal response. See Reep v. DOJ (D.D.C. 2018).

Q3. During that six years, does USDA/FNS have to wait for me to see if we will file a judicial FOIA appeal or is it allowed to continue with working on the case?
A. The agency has discretion to reopen your request even if you do not file a lawsuit, but it is not required to do so.

Q4. If I decide to file a FOIA appeal judicially, this RCFP website suggests I file: (1) a short-form complaint and/or (2) a “Motion for Vaughn Index” (https://www.rcfp.org/federal-open-government-guide/federal-freedom-information-act/how-file-foia-lawsuit). Do I need to do both 1 and 2? Can they be filed at the same time? Which takes less time for the government to complete? A. In my experience, most FOIA plaintiffs do not file motions for a Vaughn Index, as you can see from the FOIA Project’s database of FOIA lawsuits. The government typically prepares a Vaughn Index in connection with its motion for summary judgment.

Q5. Can I file by mail? USDA/FNS HQ is in DC. I'm assuming Wash. DC District Court. Who do I address the envelope to?
A. The U.S. District Court for the District of Columbia has a handbook for pro se litigants that addresses these issues.

Q6. What are the fees to file a FOIA appeal? If I do 1 and 2 (from Question #4), are they separate fees for each? Who do I make the check out to?
A. The fee for filing a civil complaint in the U.S. District Court for the District of Columbia is $400. The full fee schedule and payment instructions are posted on the court’s website here.

Q7. If I do a short-form complaint, I will also include all the dated documentation USDA sent me. And I will include a prepaid postage return envelope. Anything else I'm missing?
A. I again refer you to the court’s pro se handbook for guidance, but I will point out that you at least need to complete a civil cover sheet and multiple summonses. Copies of those forms are available here. You also might wish to refer to copies of recent filings contained in the FOIA Project’s database.

Q8. If I do file a judicial appeal. For #1 and #2 (question 4), do I need to reference the FOIA tracking #? The sample FOIA complaint appeal and Motion for Vaughn Index templates from other websites don't include any FOIA tracking # in their response.

A. Your complaint will not be dismissed if you exclude the request tracking number, because that information is not a material fact. Many FOIA plaintiffs include the tracking number in their complaints, however, for the sake of completeness or to distinguish multiple requests that are being litigated.

Q&A: Crimes and misdemeanors

Q. I am aware of the attorney-client privilege and the crime-fraud exception with regard to attorneys for private parties, but does it apply in the case of attorneys with the government? Put simply, can government employees use government attorneys to further known fraud and illegal activities, and are those communications covered under the attorney-client privilege or can the privilege be pierced?

A. I am not aware of a FOIA case in which the court has actually overruled an agency’s withholding based on the crime-fraud exception, but district courts appear to be willing to consider its applicability. In 2014, for example, the Southern District of New York ultimately rejected that the exception applied to disputed documents, but stated that it was “skeptical of the government's contention that the crime-fraud exception has no applicability in the FOIA context."  Nat'l Immigration Project of Nat'l Lawyers Guild v. DHS, No. 11-3235, 2014 WL 6850977 (S.D.N.Y. Dec. 3, 2014). The court reasoned that "it is utterly implausible to suppose that Congress intended FOIA Exemption 5 to shield government documents when they were created for the purpose of furthering a crime or a fraud." 

Additionally, in 2015. the Eastern District of Pennsylvania evaluated whether records withheld in FOIA case under the attorney-client privilege fell within the crime-fraud exception (which the court stated was a “well-known” exception), but it concluded upon review of the disputed records that there was no evidence of crime or fraud. Pellegrino v. TSA No. 09-5505 (E.D. Pa. May 6, 2015). More recently, however, the Southern District of New York noted that it was “unclear whether a court construing FOIA could properly order disclosure based on the applicability of [the crime-fraud] exception.” Sorin v. U.S. DOJ, 280 F. Supp. 3d 550 (S.D.N.Y 2017).