As an attorney, you have a duty to do an adequate investigation before asserting any claim, but your investigation can’t intrude on others’ privacy rights. Getting public record information is one way to get what you need without a privacy problem. But what if the information isn’t available online or through a visit to a federal agency? Make a Freedom of Information Act request.
The Freedom of Information Act (FOIA) (5 USC §552) generally provides that any person has a right of access to federal agency records. Virtually every document generated by a federal agency is available to the public in one form or another unless specifically exempted from disclosure.
Getting information you need under the FOIA is a relatively straightforward process:
- Ascertain the appropriate agency. First figure out which is the appropriate federal agency to contact. Here’s a list of agencies and their Freedom of Information offices to help you. You may also find assistance in “Your Right to Federal Records” from the Federal Citizen Information Center.
- Send a request letter. Send a written letter of request that includes the information sought and the reasons for seeking it to the agency’s Freedom of Information Office. Identify the information you seek with as much particularity as possible. Note “Freedom of Information Act” at the top of the letter and on the envelope. Always keep a copy of the request in case you need to appeal a denial.
- Check on any cost. The particular agency may charge costs associated with searching for the material and making copies. See 5 USC §552(a)(4). You can request a waiver if you can show that the information, when released, will contribute significantly to the public understanding of the operations of the government. See 5 USC §552(a)(4)(A)(iii).
- Wait for a response. Agencies must respond to a FOIA request within 20 business days (excluding Saturdays, Sundays, and legal holidays). 5 USC §552(a)(6)(A). The response time may be extended for an additional 10 business days under certain circumstances. 5 USC §552(a)(6)(B). The narrower the request, the more likely it is to be timely honored.
Certain information is exempt from access under the FOIA, and the government may withhold it when responding to an FOIA request. One exemption is for information that impacts personal privacy, i.e., “personnel and medical files and similar files” the disclosure of which “would constitute a clearly unwarranted invasion of personal privacy.” 5 USC §552(b)(6).
Also exempt are law enforcement records. 5 USC §552(b)(7). This exemption extends to agencies, such as the IRS, that combine administrative and law enforcement functions. These agencies may seek to avoid disclosure of records compiled for law enforcement purposes, but may withhold them only if certain requirements are met. 5 USC §552(b)(7)(A)–(F).
For more on getting the information you need for your pre-trial investigation with privacy issues in mind, turn to CEB’s Privacy Compliance and Litigation in California, chapter 12—which also covers the California Public Records Act.
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