Besides our right and ability to vote, which remains under
attack, and First Amendment, which has been under attack forever but with
greater intensity in the Trump era, the Freedom of Information Act may be
democracy’s last stand.
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| Why was this officer pointing at Manuel Duran? We filed an FOIA with Homeland Security to find out --Moore Media Images |
This is chiefly where major stories have been coming from in
this century as governmental sources seem to be inclining toward increasing
paranoia mixed with arrogance.
To submit a FOIA – if you hear someone say what sounds like
“Foy- ya,” this is what they are talking about – involves several steps but is
not terribly hard. It is not so hard as actually getting the government to
respond fully, promptly and accurately.
Here is my quickly composed how-to:
CITY OF MEMPHIS
To submit a FOIA, or Freedom of Information Act request, AKA
Open Records Request, from the city of Memphis, first go here and set up an
account.
After establishing an account with your email and password,
submit your request. Just type what you want, what you are looking for. Be
specific as to time frame, names of anyone you are looking for, etc. You will
be asked to attach a document showing who you are and where you live, such as a
shot of your drivers license or voter registration card, proving you are a
local resident.
Here are two examples, one I am thinking about requesting and
one I previously requested:
From City of Memphis, MPD. “Please provide copies of all traffic
citations issued on July 6, 2018, between the hours of 4 p.m. and 10 p.m.,
written by law enforcement officers within the following physical perimeters:
“North of I-240; South of Park Avenue; East of E. Prescott; West
of Getwell.”
Here is one I submitted to MPD on May 22 after I had received
documents from TN Department of Homeland Security, which I regarded as incomplete,
upon this same subject. My objective here was to uncover preemptive targeting
of activists by law enforcement.
“Intra-agency and inter-agency communications
related to suspected or actual rallies, demonstrations and public political
displays the week of MLK50, April 2-April 7, 2018. Agencies and
information-gathering and sharing entities shall include all federal, state,
city and county, including but not limited to RTCC, FBI, TBI, ATF, JTTF, Fusion
Centers, Secret Service, ICE, Dept. of Homeland Security; as well as all video
and photographic images, and audio recordings, that may have been recorded by
LE between 1:30 p.m. and 6 p.m. on April 3 at or near 201 Poplar Ave.
Fulfillment of this request is to be provided digitally and electronically at
no cost to the requester.”
MPD’s reply was as follows:
“The
City has reviewed your request and has determined that the records requested
are exempt from disclosure for the following reasons: Per the custodian, this matter is an open and ongoing law enforcement
investigation and pursuant to TN Crim Pro Rule 16, the records are not
available at this time.
“This
completes your public records request with the City of Memphis.
“Sincerely,
“Public
Records Office
“City
of Memphis”
TN DEPARTMENT OF HOMELAND SECURITY
To request information from the TN
Department of Safety and Homeland Security, including the state Fusion Center
(aggregator of law enforcement communications), send an email to Kyle.Turner@tn.gov.
He is a staff attorney in the office of
Department of Safety commissioner David Purkey.
He is the screener and intake man for FOIA requests.
Here is how I posed my request on April
17:
“All
documents of every sort, including but not limited to emails, faxes and
reports, pertaining to protests and public demonstrations in Memphis, TN, on
April 2 and April 3, 2018; from, to and among all agencies, state, federal and
local; and especially pertaining to a “Rolling Block Party” posted on Facebook
and including but not limited to these individuals: Keedran Franklin, Hunter
Demster, Spencer Kaaz, Yuleiny Escobar and Manuel Duran.”
They are required to respond within 2 weeks
– even if their response is, We don’t have it yet. We will have it in 2 weeks.
Then, 2 weeks later, you may get another, We don’t have it yet, but we will
have it in 2 weeks. Due to FOIA rules,
the government entities receiving the requests are obliged to send updates
periodically, even if they are merely stalling and hoping you will give up; or trying to figure out how NOT to get you the documents, or how much to redact.
Here is the story we wrote in DailyKos after getting some heavily redacted emails from OHS
Here is the story we wrote in DailyKos after getting some heavily redacted emails from OHS
To request documents from a different
state agency, go to that agency’s web page. Here is a link to a generic state
of Tennessee open records request form.
Here is an “Open Government Guide” for
Tennessee. It is prepared by attorneys, reads something like a legal brief
(dense and dull), but it is probably a good chapter-and-verse breakdown.
FBI and ADVICE FROM A PRO
Aaron Sankin, staff reporter at Center
for Investigative Reporting, writes “The Hate Report” for Reveal News – and a
bunch of other stuff, and he is experienced (more than me) at clawing info out
of government scoundrels. I reached out to Aaron recently for advice. He said
FBI is the worst to try to get info from and that they have several pending
lawsuits against FBI to release info. He said suing them is usually what it
takes to pry info from FBI.
Here is what he wrote to me, in the
format of a model request with citations:
To Whom It May Concern:
This is a request under the
Freedom of Information Act. I am a reporter seeking all documents and records
regarding XXXXXXXX.
More specifically, I hereby request XXXXXXXXX.
Please limit the date range of this search to between XXXXXXXXX
and the date when the search for responsive records is carried out.
In addition to the records requested above, I request records
describing the processing of this request, including records sufficient to
identify search terms, locations and custodians searched, as well as any
tracking sheets used to track the processing of this request.
If XXXXXXXXX uses FOIA questionnaires or certifications completed
by individual custodians or components to determine whether they possess
responsive materials or to describe how they conducted searches, I also request
any such records prepared in connection with the processing of this request.
I seek all responsive records regardless of format, medium, or
physical characteristics. In conducting your search, please understand the term
“communications” in its broadest sense, to include any written, typed,
recorded, graphic, printed, or audio material. I seek records of any kind,
including electronic records, audiotapes, videotapes, and photographs, as well
as letters, emails, facsimiles, telephone messages, voice mail messages and
transcripts, notes, or minutes of any meetings, telephone conversations or
discussions. Our request includes any attachments to these records. No category
of material should be omitted from search, collection, and production.
Please search all investigative and
non-investigative files. Also, please exclude all news articles and duplicate
emails from the search results.
IF YOU'RE FILING A FOIA WITH THE FBI ADD THIS:
IF YOU'RE FILING A FOIA WITH THE FBI ADD THIS:
***In addition, please ensure the FBI searches its case management
system (the Automated Case Management System), its administrative records
(which hold information from contractors or others—who perform work for the
FBI), its Operational Technology Division (which develops and deploys
technology-based solutions for the FBI’s intelligence), Records Management
Division, email management system, Electronic Surveillance (ELSUR) Data
Management System, or any “compliance audits” (also known as “Quality Assurance
Reviews”).***
You may not exclude searches of files or emails in the personal
custody of your officials, such as personal email accounts. Records of official
business conducted using unofficial systems or stored outside of official files
is subject to the Federal Records Act and FOIA. It is not adequate to rely on
policies and procedures that require officials to move such information to
official systems within a certain period of time; I have a right to records
contained in those files even if material has not yet been moved to official
systems or if officials have, through negligence or willfulness, failed to meet
their obligations.
If any potentially responsive records have been destroyed and/or
transferred to other agencies or offices, such as the National Archives and
Records Agency (NARA), then I request copies of the destruction or transfer
slips as well as any other documentation relating to, mentioning or describing
said transfer or destruction, to include but not be limited to confirmation
that XXXXXXXX has no other copies of said records.
In addition, please note
that in conducting a “reasonable search” as required by law, you must employ the
most up-to-date technologies and tools available, in addition to searches by
individual custodians likely to have responsive information. Recent technology
may have rendered XXXXXXXX’s prior FOIA practices unreasonable. In light of the
government-wide requirements to manage information electronically by the end of
2016, it is no longer reasonable to rely exclusively on custodian-driven
searches.
Furthermore, agencies that have adopted the NARA Capstone program,
or similar policies, now maintain emails in a form that is reasonably likely to
be more complete than individual custodians’ files. For example, a custodian
may have deleted a responsive email from his or her email program, but
XXXXXXX’s archiving tools would capture that email under Capstone.
Accordingly, I insist that XXXXXXXX use the most up-to-date
technologies to search for responsive information and take steps to ensure that
the most complete repositories of information are searched.
Under the FOIA Improvement Act of 2016, agencies must adopt a
presumption of disclosure, withholding information “only if . . . disclosure
would harm an interest protected by an exemption” or “disclosure is prohibited
by law.”
If it is your position that any portion of the requested records
is exempt from disclosure, I request that you provide an index of those
documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973),
cert. denied, 415 U.S. 977 (1974). As you are aware, a Vaughn index must
describe each document claimed as exempt with sufficient specificity “to permit
a reasoned judgment as to whether the material is actually exempt under FOIA.”
Moreover, the Vaughn index “must describe each document or portion thereof
withheld, and for each withholding it must discuss the consequences of disclosing
the sought-after information.” Further, “the withholding agency must supply ‘a
relatively detailed justification, specifically identifying the reasons why a
particular exemption is relevant and correlating those claims with the
particular part of a withheld document to which they apply.’”
In the event some portions of the requested records are properly
exempt from disclosure, please disclose any reasonably segregable nonexempt
portions of the requested records. If it is your position that a document contains
non-exempt segments, but that those non-exempt segments are so dispersed
throughout the document as to make segregation impossible, please state what
portion of the document is non-exempt, and how the material is dispersed
throughout the document. Claims of non-segregability must be made with the same
degree of detail as required for claims of exemptions in a Vaughn index. If a
request is denied in whole, please state specifically that it is not reasonable
to segregate portions of the record for release.
Please institute a preservation hold on information responsive to
this request.
As a member of the news media, I am seeking this information for
dissemination to the general public as part of an effort to examine XXXXXXXXXX.
This request is made in the public interest and not for commercial use.
As such, I am requesting a fee waiver of search and review fees as
a member of the news media. 5 U.S.C. § 552(a)(4) (A)(iii).
If this fee waiver is not granted, please notify me if document
retrieval and reproduction costs exceed $XXX.
Please furnish all responsive records in electronic, searchable
format delivered to my email address XXXXX@XXXXXX.XXX. If that’s not possible,
please send records paper printouts sent to the following address:
XXXXXXXX
XXXXXXXXXXXXX
XXXXXXX
All correspondence regarding this request can be directed to me at
XXXXXX or (XXX) XXX-XXXX.
Please be aware that under 5 U.S.C. § 552(a)(6)(A), a FOIA request
is considered constructively denied after twenty business days and is subject
to litigation on that basis. If my request is denied in whole or part, I ask
that you justify all deletions by reference to specific exemptions of the act.
As the law requires, I will also expect you to release all segregable portions
of otherwise exempt exempt material.
I reserve the right to appeal your decision to withhold any
information or to deny a waiver of fees.
If you have any questions, do not hesitate to contact me at (XXX)
XXX-XXXX. Thank you for your prompt attention to this request.
