Friday FOIA Fun
A lot of parts of the government have moved to using form letters to respond to FOIA requests; the ostensible reason for this is to ensure uniformity in communication with requesters - not just literal, aesthetic uniformity, but uniform quality as well. The gods know, this has had some significant advantages - I’ve had more than one indecipherable letter from FOIA officers over the years. I wonder, though, if the rigid adherence to form letters might be a problem, as well.
A couple weeks ago, I made a request to a component of the Air Force, for information regarding a now-obsolete piece of equipment withdrawn from use in the late 1990s. Because the Air Force’s FOIA website and information leaves a little bit to be desired, and it’s not always clear who handles FOIA requests for whom, I made my request to the component’s parent command, who promptly forwarded the request to the FOIA officer at one of the bases which houses the unit. So far, so good. Right? Right.
Well, earlier this week, I received an email informing me that “the Nth Squadron at Y has had no dealing now or ever” with the equipment in question. “No dealing”, no records; can’t really argue with that.
Here’s the thing, though: I know that Nth Squadron never used the dumb thing - they never flew any of the correct models of aircraft on which the device was usable. At least one other squadron now at Y did, however - but it appears they were never consulted.
Had this command used a form letter - saying something bland and uninformative to the effect that “no records responsive to your request were located” - this mistake (?) might never have been spotted. As it was, though, I was able to respond and point out that the wrong squadron had been queried. (Mind you, it appears that the “correct” squadron no longer has any records concerning the equipment in question, and aren’t real sure where such records would now be… but at least we’re making a little bit of headway.)
This illustrates one of those FOIA lessons I can’t emphasize enough - and one which I probably need to heed as much as the next person, sadly: For most sorts of FOIA requests, to most parts of the government, you probably know far more about the subject of your request than the people processing your request. This is especially true of historical records - sometimes, sadly, the only way to get historical records from the FBI, for example, is to request that they, literally, search the physical card index under a given subject and close derivatives, and review any indexed records for release. Recently, I made a request to a government agency, for records from an electronic database they use - a database I referenced by name. I received a pleasant phone call from one of their FOIA staff a few days later, politely inquiring what the hell the “thingy” was, as nobody in the FOIA office knew what it was, had heard of it, or - most importantly - knew where to route the request to. “Wow, we have something like that?” said the nice person, once I’d explained what the system was. It seems stupid, but that’s just the way it is…
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I’m curious. I imagine the FOIA asserts some responsibility on the part of the government to supply requested information if it exists but to what degree are they culpable should they fail to supply suitable materials to the one requesting them? That is assuming everything was filled out properly, etc.
In this particular case there’s no real problem but in the case of some serious legal situation forwarding the request on to the wrong department or unit could easily be a deliberate “mistake” that with the form letters could lend to some significant obstruction of justice.
Is there any recourse?
I don’t believe there’s recourse of the sort you’re referring to, no. You have the ability - indeed, the right - to appeal anything up to a “full release” - including the release of nothing at all, or the failure of the government to release records within the mandated time frame, but my experience is that it rarely has any meaningful effect. Beyond that, the only option is to sue, in federal court, and as far as I know the only thing one can “win” is the release of the records in question, and legal fees.
There are - in some but not all parts of the government - “requester service centers” or “FOIA advocates”, or similarly-named individuals who can - and do - help intervene in disputes regarding FOIA and Privacy Act requests, but there’s not always a whole lot they can - or will - do. Still, they do provide a much-needed (but arguably still inadequate) degree of accountability, which is particularly important once you start making requests to smaller and more obscure parts of the government, where the people handling your FOIA request(s) don’t do so full-time, and don’t - as a rule - have a whole lot of experience in that area…