Friday, July 27, 2018

Using a FOIA to get information out of the government

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.

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:

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.


“Public Records Office
“City of Memphis”


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

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

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.

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. 


***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: 


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.