To FOIA, or Not To FOIA

I send a lot of FOIA requests.

OK, so maybe I don’t FOIA as much as various conspiracy theorists and Area 51 fans, but I do use FOIA more than the average person. They all pertain to various appeals and administrative cases in which I’m representing current/former service members and government employees.

Some arrive with paperwork and files intact and minimally redacted (losing a few social security numbers here or there). Others arrive as papers with dark black rectangles, with occasional pronouns revealed, just to make me wonder. It evokes images of a hospitalized Yossarian sanitizing letters.

Of course, I know better. After all, I did spend part of a year in administrative law, where I often provided legal reviews for FOIA requests. Looking back, there always seemed to be an effort by agencies to avoid compliance or disclosure. Most of the time, it wasn’t out of a desire to hide or deceive, but more out of personal urges by the civil servants to avoid the work required to comply with each request. Resistance was especially strong when it involved tracking-down and compiling emails.

I tried to call everything as much as possible to the letter of FOIA, but the mushy language of the act left much room for interpretation. Mostly, I endeavored to reconcile FOIA with the provisions of the Privacy Act. I didn’t like the work, and I especially didn’t like the urgings from lazy civil servants who sought to avoid a bit of extra work at the photocopier.

Arguments ensued. Often, they went like this:

Civil Servant (CS): Here’s a FOIA request. Tell us if we have to disclose this stuff.

Me: No, get the documents that are subject to the request along with your recommendations as to what should/should not be disclosed, and I’ll do a legal review of it.

CS: Why can’t you do it?

Me: I do legal reviews. You are the installation FOIA officer. It is your job. You were hired to do FOIA stuff. By regulation…

CS: All I need you to do is say that this request is denied because it is over-broad. That’s easy.

Me: I have no problem doing so, if that is the case, but I won’t know until I see the documents and your analysis.

CS: So, are you saying you’re not going to do this for me?

Me: …

In short, as a military lawyer, it was unpleasant to see the proverbial sausage being made.

Today, the whole world gets a glimpse at the same, as a Navy memo intended to be kept private was released to the internets by accident (by being sent to the reporter who submitted the FOIA request). I shudder when I wonder how many of my requests, on behalf of a client, are treated similarly.



Luckily, the Navy responded via Twitter and made things all better. They even included an appropriate hashtag. Everyone can relax. #USNavy is doing just fine.

Screenshot 2014-01-08 08.50.04