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You Can FOIA A FOIA (Seriously) – And You Should Probably Care (Seriously)
by Tara J. Lamer
From alien hunters to government conspiracists to seasoned litigators, the Freedom of Information Act Request has been inspiring abject terror and unrelenting boredom since 1967. There are forms for forms that refer to other forms. There are government clerks who have vacation planned. There are rejection letters upon rejection letters and then finally, after the whole tragic dance has played out and the verbiage has been finessed to the point you have forgotten what you were really after in the first place, there is anywhere from one page by email to a cubicle full of banker’s boxes of results. In a world of paperwork and fillable online fields and facsimile confirmations, the Freedom of Information Act remains the undisputed King.
In the litigator’s world, it is tempting to view FOIA simply as a routine tool for discovery purposes, for witness investigations, and for site analyses. Indeed, that is the meat of it and once someone in your office masters The FOIA Problem, that person is likely (and rightfully) elevated to the status of “never comment on personal internet usage time.”
However, the routine tool we all know and hate love has an often overlooked eccentricity – the ability to FOIA the FOIA.
What?
Yes. Anyone in the world who wants to do so may draft a Freedom of Information Act Request for a list or log of others who have drafted a Freedom of Information Act Request, for essentially anything you can think of that would spur a Freedom of Information Act Request in the first place. This also applies to any similar state open records law. A request for a log is (of course) subject to any of the nine standard FOIA exemptions, but often these requests will go through relatively unfettered, although the typical thought is to limit the request by certain dates to expedite the process.(1)
For an example of a typical FOIA log that was produced in response to a FOIA request, here is an excerpt from the extensive request log of the Clinton Presidential Library for requests received in March, 2013:
It is unclear from the log whether Mr. Cameron cares that the world knows he is researching aliens and the possibility of a conspiracy between the Clinton Administration, Billy Graham, and Steven Spielberg and/or Kate Capshaw, and I admittedly did not contact him for a comment. However, the point is that someone, somewhere, for reasons we may never understand, wanted to know who was requesting documents from the Clinton Presidential Library in March, 2013, and they received this tidy PDF document listing.(2) The far left column is the request tracking number, so in theory, we could very easily submit our own FOIA request to receive the same documents sent to Mr. Cameron regarding the alleged Clinton/Graham/Spielberg secret meetings.
As amusing as some of the logs can be, this little breadcrumb request device is important to outside litigators and in-house counsel for two main reasons:
One, who has been requesting information about your client?
About your client’s jobsite/product/legislative history/Federal Drug Administration correspondence/non-citizen employee filings/insert anything here?
When did this begin? What information has the requester obtained thus far?
Journalists, opposing counsels, activist groups, non-profits, embittered former employees, weird online bloggers you have never heard of – FOIA does not discriminate.
This could signal a nasty surprise is in store for your client, but by watching the breadcrumbs left by others, you may gain a significant advantage in your ability to get out in front of whatever is coming.
Two, what breadcrumbs have you left behind in your own FOIA request history?
While this may not seem relevant offhand, since we tend to think of the FOIA as anything “public record” – therefore who cares what is kept in the log – let us go to a hypothetical.
You have a client who is being sued for the plaintiff’s occupational exposure to a product, and your client was one of many manufacturers. You do not think your client was distributing in that area of the country anyway, and maybe there is prior testimony to that effect in previous cases. Opposing counsel is not prepared to voluntarily dismiss you (or anyone else) at this juncture, and maybe never will. You get the idea to submit a FOIA request to state and federal agencies that may have records related to the exposure site, looking for support for your alternate causation defense. Someone drafts it, you sign it, and maybe no one thinks about why the drafter of your request extended the years out to plus or minus five, just to be safe and make sure you get everything. It is a common practice.
Your records come back, and great news, you have a dedicated associate to sift through them, and even better news, there is loads of evidence of other exposures. You have your neatly culled set of important documents. You leverage them at just the right time. Your client is now completely uninteresting to the plaintiff, and after you get a dismissal, you cruise into your weekend confident that all is well.
The following year, you get another case. This time, the plaintiff worked at the same site two years after the first one. What you may not yet know is that your associate from last summer failed to mention the records demonstrating a first documented purchase of your client’s product two years after the original plaintiff stopped working at the site. Maybe it was through a distributor that even your client was unaware of before now, or maybe your associate stopped reading documents after the last date the plaintiff worked and then your office manager sent all the (begin air-quotes) surplus documents (end air-quotes) to the file in the basement to be rid of them before the office holiday buffet.
Now, here is your situation: the new plaintiff worked during the distribution period of your client’s product, but you are filing away on the idea that the distribution never occurred. You are leveraging your non-exposure argument (and your credibility) every chance you get to push for another dismissal. You have dropped this case down on your priority list and weeks of potential investigation time are screaming by, but you are not concerned, because since one must be exposed in order to be infected, your causation argument is in the bag.
Unfortunately, you are operating on a partial set of facts, and it easy for anyone who has ever touched litigation to see exactly how it happened. If you only remember one thing from this blog entry, remember this: However innocent the error, anyone who wants to FOIA your FOIA will find out when you “learned” about the distribution, even though you never really knew it. This could turn into a very nasty surprise for you, so be aware of your breadcrumbs.
Finally, it is a lot of work to prepare and process a sizeable FOIA request, so to FOIA a FOIA simply must be beyond the fiscal reach and general patience of most people, therefore most of the time we can bank on them not doing it. Right?
Wrong. Although record accessibility varies by agency, anyone with an internet connection may now search FOIA online using any keyword – such as your client’s name, your firm name, or an exposure site name – that may generate a hit. Whereas in the olden days, someone may have needed to be willing to take multiple (snail mail-based) shots in the dark to find that out, the functionality of being able to search by key words has essentially eliminated that requirement. If your client’s name (or a product name or a site name) is in a document, it takes very few clicks to link back to the original requestor. Was it your paralegal? Was it your longtime local counsel? Was it you?
Due to the number of documents filtered through this site, the search process can be admittedly somewhat cumbersome for a beginning user, but just keep in mind that this information is really now just a smartphone away. In many situations, of course, this will not matter. However, if you are concerned about the breadcrumbs you may be leaving behind you during a discovery investigation, you have some key considerations:
- Who is the frontline person making your request, and how easily does that track back to you?
- Is it sufficiently narrow to avoid documents that are not currently responsive, yet sufficiently broad to cover the instant case?
- Finally, do you have a system in place to adequately track both your requests as well as the content of the universe of documents received, both now and for the future?
Each litigation team marches to its own drummer, and each sector of litigation has its own concerns. But, in a post-Google world, the details become more pressing. The internet never forgets, as they say, so as routine and harmless as FOIA requests can feel, be sure you are monitoring your breadcrumbs and have identified solutions to the above. Preferably, solutions that keep you from hitting the Snakebite Alarm years down the road due to the routine request you will sign off on tomorrow.
