Information Just Wants to be Free: Using the Freedom of Information Act and the Public Disclosure Act

This July Fourth, America celebrates the 37th anniversary of the Freedom of Information Act, first signed into law by President Lyndon B. Johnson. According to the National Security Archive, John-son was a bit reluctant to sign the Act, unsure of how the country would delicately balance the need to protect information as well as to disseminate it.

Almost four decades later, the Act-which can be found in Title Five of the United States Code, Section 552-appears to be as vital as ever, and in frequent use. Federal agencies now receive about two million requests a year, at a cost to taxpayers of about a dollar per person a year-the results of which appeared in over 3,000 news stories and, we can imagine, were featured in countless lawsuits as well.

Public access to government records is guaranteed on a national level under the Freedom of Information Act (FOIA), but on a state level, Washington’s Public Disclosure Act (PDA) controls. To find out how to best use these important tools, we talked to two Seattle attorneys well-versed in the matter: Steve Strong and Fred Diamondstone.

Steve Strong handles plaintiff employment matters, often class actions, for Bendich, Stobaugh and Strong, PC. Fred Diamondstone is in solo practice, with an emphasis on plaintiff personal injury and civil rights cases, along with ADR.

Both acknowledge that FOIA can be more difficult to use-not so much in terms of submitting requests, but in handling the delays that inevitably arise. Says Strong, “We’ve had cases where the Federal agencies take six months, a year, two years to respond to a re-quest; and sometimes not until we bring a lawsuit.”

According to the National Security Archives, such a delay is not unusual. It admits, “Federal agencies still resist obeying the letter of the law, especially the requirement of a response within 20 working days,” and cites an instance of the CIA taking nine years to turn down a request in full, and longer still to deny the appeal.1

How does an act introduced to provide public access to information reconcile itself with significant delays in complying with those requests? Explains Strong, “The Federal statute has time limits for the initial decision and the appeal, but it provides no penalties for missing those deadlines. The Washington statute, by contrast, has penalties for delay.”

Filing a FOIA Request
In principle, filing a FOIA request is straightforward. Sometimes it’s as simple as calling up a federal agency and asking them who to submit a request to, or downloading a copy of their specific request form from the agency’s website.

The Electronic FOIA (“EFOIA”) of 1996, signed into law by President Clinton, requires that every government agency post on its website information about FOIA use. The National Security Archives website is a great source of information about filing a request. There’s a section called “How to Make a FOIA Request,” which includes an instructive article called “Tips and Tricks to Using the FOIA,” a sample FOIA letter, and a sample FOIA appeal letter. “A FOIA request should be an information-gathering tool of last resort,” the “Tips” article begins, “as it can be time-consuming and costly.”2

Tips for Making a Successful FOIA Request
We asked Steve Strong what advice he had for lawyers making their first FOIA request. He said, “it is important to figure out who you make the request to; and many times, making them in multiple places, because it may not be clear where the records are located, and what they will be called.” He added, “It is normally necessary to use both whatever the specific terms you might know about the nature of the record; and also some generalized description of the type of information that you want the record to contain. Then, offer to the recipient of the letter your willingness to try to be helpful to explain or narrow the nature of the request, if you start with a very general one. The less you know about how the agency may name those records or describe those records, the more general your description has to be. But then, in those cases, one should always follow up the request with discussions with the people doing a search for the records, so they can have a better understanding of what type of record you’re looking for; so that they readily find them; and you can more readily find out what type of record the agency might have that could be useful.”

He continued, “Many times when you’re outside an agency, you believe that the agency has a particular kind of information, but you don’t know how it’s maintained, or what it’s called or how the record is filed. So having discussions with the people who do the work, as well as people who are looking for records, can be very helpful if you’re trying to make a request more clear, and make it more likely to be responded to.”

Strong believes that working with an agency to help them understand what you want is more likely to get a good response. He explained, “many times agencies are trying to comply with the law, but they have some confusion about what is being requested, or they want to use confusion as an excuse for delaying-so in order to get better service from the agency, it’s always best to try to have a discussion about what it is that you’re after, and what type of form that may be in, and where to look for it. And be willing to go back and forth with the agency about what to look for, and where it might be found.”

Handling Delays
What about handling the inevitable delays? Strong, who has initiated FOIA requests to the Justice Department, the Internal Revenue Service, and the National Labor Relations Board, says delays can be a “tricky problem-because sometimes simply nagging the agency to ‘please get the documents to you’ may not work; although it may.” He notes that threatening a lawsuit is usually not all that helpful and, although the lawsuit itself might be successful, litigation itself is not quick.

Strong says, “I think that lawsuits are mainly for purposes where the agency is just refusing to provide the record; as opposed to just stalling in providing the record. Although at some point or other, I guess I’ve had some occasions where the stalling went on for so long that it amounted to a denial of records. But I think that most agencies are not unconcerned about responsibilities under the law; they won’t truly stall forever.” He acknowledges “legitimate differences of opinion about whether or not a document is exempt” and says that, “in those cases that can’t be won by persuasion or appeal, then litigation is perhaps the only way to go to get the records.”

Fred Diamondstone says that most of his requests go through the state Public Disclosures Act, rather than FOIA, and he’s glad of it. Says Diamondstone, “The Federal tends to be an incredibly long, slow, drawn-out, dragged-out thing if you try to use it. Agencies tend to be very lackadaisical about responding. It seems that under the FOIA that they have lots of fudge in terms of how long it takes them to respond. ... By the time you get stuff, either you’re no longer working on the case, or you don’t care about it, or you’ve filed a lawsuit and gotten the same information otherwise.”

The Public Disclosure Act
Fred Diamondstone says that one of the best uses of the Public Disclosures Act for his practice is the ability to find out information that can help settle a dispute before a lawsuit is even filed. He recently settled with the city and the county for a client who mistakenly wandered into a demonstration on the first anniversary of shutting down the Seattle WTO meeting on her way home from school, and was thrown in jail.

Through the Public Disclosure Act, Diamondstone obtained records from the Seattle Police Department and the King County Jail that confirmed his client’s story in his eyes. “Finding her to be a credible person,” he relates, “I felt comfortable pursuing, and trying to settle these as claims rather than filing a lawsuit.” The $17,000 settlement Diamondstone says “might be a little less than I could have gotten with a jury trial, but then again, there was a lot less delay, there was a lot less risk, and there was a lot less expense to the client.”

Diamondstone says, “Under the Act, they can’t ask you what your need to know is. If it’s public information, you’re entitled to it. Now with the Criminal Records Privacy Act, on the other hand, you do want to let people know that you’re seeking the information on behalf of a crime victim, in order to try to convince or persuade the law enforcement agency to give you broader rather than narrower disclosure.”

He notes that local police submit the names of the liquor-serving establishments last frequented by people arrested for DUIs, and how the Washington State Liquor Control Board then tallies these figures, ranking establishments by county and number of incidents-a report which he says can be invaluable in proving that a tavern has a pattern of over-serving its customers.

Tort Claim Filing Requirements
Diamondstone also tells a cautionary tale that not knowing your way around the applicable tort claims acts can be costly to attorneys who try to file claims against government entities. He says, “people frequently think that they’ve complied with the claims statute, only to find, three or four years later, that their case is being thrown out. ... You’ve got to file it with the right agency to receive the claim. It’s fundamental.”

He continues, “Different governmental entities have their own processes, so you have to check the local ordinance -or you can try to check with the County Auditor, because under the current law, if you’re a governmental entity, you’re supposed to file for the public record with the Auditor’s office who the right person is to file your claim with-although recently someone told me that they couldn’t get that information out of the King County Auditor’s office. By statute, they’re supposed to have a list of all this.”

A Supreme Court Test
Diamondstone was a fount of information about a Washington state case, Guillen v. Pierce County, 144 Wn.2d 696, 31 P.3d 628 (2002); reversed and remanded, Pierce County v. Guillen, 537 U.S. 129 (2003). The original case involved a widower who filed a complaint under the Washington State Public Disclosure Act relating to a traffic intersection at which his wife was killed; he also filed a tort action against the county. At issue was whether traffic accident data compiled under the Federal Highway Improvement Act could be used as evidence or was discoverable in the course of a lawsuit.

The U.S. Supreme Court decision, Diamondstone says, narrowly interprets the law, and says that generally data on accident history is disclosable under the Public Disclosure Act, unless it was compiled specifically for Federal Highway Improvement Act purposes. He also refers interested readers to RCW Chapter 4.92 for claims against the state, and RCW Chapter 4.96 for claims against local governments-counties and cities.

Making the Public Disclosure Act Request
In his own practice, Diamondstone says he typically “just sends out a letter, saying I want the records, and telling the agency that the request is being made under the Public Disclosure Act, RCW 42.17.250, et seq. I tell them I expect their prompt response as required by the Act. (RCW 42.17.320) ... And typically I get a letter back after a week or two, saying that they got the request, they’re processing it, and they’re reviewing the records in order to determine if there are any exemptions that apply. And then two or three weeks later, I will get a big stack of records, sometimes with redactions.

With criminal justice agencies, it is worth making a reference in your request letter to the Criminal Records Privacy Act, which gives law enforcement agencies discretion to make disclosures to crime victims, that will help crime victims obtain civil redress. That law provides a separate set of restrictions on disclosure, but for crime victims it will allow the agency some ability to waive...”

If it’s unclear about which form to use with an agency, Diamondstone recommends calling the agency and asking, or download a form online, to ensure that it’s current.

Strong and Diamondstone concur that thorough preparation in knowing who and where to direct your requests, and asking good questions of the agencies involved, are important ways to improve access to the information.

Lily Casura is a certified HotDocs consultant-and recovering freelance writer and editor-who helps lawyers automate their offices for efficiency, with an emphasis on improving document assembly. (HotDocs(r) is the #1 document assembly software, worldwide). You can reach her by phone at (425) 865-9334, or email at Lily@EfficientLawOffice.com.

1 National Security Archives at George Washington University, website http://www.gwu. edu/~nsarchiv/NSAEBB/NSABB51/.