OBTAINING PUBLIC RECORDS
By Steve Vardakis
The People’s Right To Know
History of Government Business Becoming Public Information
In 1933, President Franklin Delano Roosevelt’s “New Deal” created a series of federal programs and reforms intended to bring immediate economic relief to the country. Under FDR’s administration, many agencies were born to oversee these programs. These new federal agencies, created mostly by Executive Order and given three-letter designations, were charged with the administration of their own programs. The result was a substantial increase in government agencies, spending and activities.
These new Federal agencies were permitted to create their own rules and allowed to decide what was and wasn’t public information. The result was a wide range of interpretations and a great deal of secrecy. Efforts to give guidance and standardize the release of information came about in 1946, in the form of the Administrative Procedure Act (APA), which addressed the release of information that should be shared with the public.
FOIA was Born out of the APA
Some 20 years later, President Lyndon B. Johnson signed the Freedom of Information Act (FOIA), which went into effect in 1967. The origins of FOIA were a codification of Section 3 of the APA, and it became the first “law” to allow Americans access to records maintained by federal agencies. Its purpose is to keep citizens in the know about the activities of their government. The Watergate scandal resulted in the act being amended in 1974 to both expand and ensure greater compliance among federal agencies.
While FOIA is intended to provide transparency in government and to keep misconduct and spending in check, it does not provide access to all records. There are nine exemptions that permit agencies to withhold certain information.
The nine exemptions under FOIA are:
Exemption 1: Information that is classified to protect national security.
Exemption 2: Information related solely to the internal personnel rules and practices of an agency.
Exemption 3: Information that is prohibited from disclosure by another federal law.
Exemption 4: Trade secrets or commercial or financial information that is confidential or privileged.
Exemption 5: Privileged communications within or between agencies, including those protected by the:
Deliberative Process Privilege (provided the records were created less than 25 years before the date on which they were requested)
Attorney-Work Product Privilege
Attorney-Client Privilege
Exemption 6: Information that, if disclosed, would invade another individual’s personal privacy.
Exemption 7: Information compiled for law enforcement purposes that:
7(A). Could reasonably be expected to interfere with enforcement proceedings.
7(B). Would deprive a person of a right to a fair trial or an impartial adjudication.
7(C). Could reasonably be expected to constitute an unwarranted invasion of personal privacy.
7(D). Could reasonably be expected to disclose the identity of a confidential source.
7(E). Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law.
7(F). Could reasonably be expected to endanger the life or physical safety of any individual.
Exemption 8: Information that concerns the supervision of financial institutions.
Exemption 9: Geological information on wells.
A published list of exemptions is available on the Department of Justice website: https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/foia-exemptions.pdf
Additionally, not all governmental branches or agencies are regulated by FOIA. The branches of government, regulated under their own separate rules and not covered by FOIA include the following
The judicial branch and federal courts: www.uscourts.gov
The legislative branch and Congress: www.house.gov, www.senate.gov or www.congress.gov
Individual state governments and their courts – Check individual state government websites
For a consolidated list of federal agencies and clearinghouse for requests under FOIA: www.foia.gov/#agency-search
Additionally, we would do well to remember that FOIA is a loosely used term for the law that allows us to request the release of government documents, but is limited to federal requests.
State Public Records Laws are not FOIA
Some states have adopted public records laws that sound similar and may even have similar rules as those on a federal level. This can often cause confusion when examining agency rules and guidelines for requesting documents from state government agencies.
Making Public Document Requests
No matter where you make your request, it is important that you directed it to the proper government agency. Agencies are not obligated to, nor will they voluntarily, redirect your misfiled request.
Smaller cities, towns and municipalities do not have dedicated personnel to handle the countless requests received on a daily basis.
Receiving and documenting requests, accessing original documents, and reviewing exemptions to apply redactions prior to releasing copies of documents are labor-intensive and time-consuming. The fees collected for these documents do not come close to the costs of personnel needed to process the mountain of requests. Consequently, there have been more and more agencies automating their processes to eliminate the need for human intervention. More and more, public meeting agendas, minutes and budgets are becoming available on government websites and no longer need specific request forms.
Fees and Deposits
Fee schedules are generally set by the governing laws and, despite the labor costs involved in fulfilling a request, government agencies with little exception, must adhere to published costs. At times, agencies may require a deposit in anticipation of voluminous requests. Check to see if your record can be provided for in an electronic form, such as an email, to avoid paying for copying fees.
Laws and Appeals Processes Vary by State
Similar to FOIA, states may impose restrictions and exclusions, which differ from each other. As with federal agencies, not all state, county and local agencies are governed under the state’s public records law. It is important that you familiarize yourself with the scope of the particular state, county and local government agencies you are requesting documents from.
In New Jersey, the Open Public Records Act (OPRA) is a codification of a series of older executive orders and a “Right to Know” law that preceded its enactment. Under New Jersey’s version, there are 25 specific exemptions that a requestor should be aware of before making an application. Similar to FOIA, state and local courts are not regulated under OPRA, but instead a separate set of guidelines and exemptions.
Time Limitations
When submitting for public record documents, all requests must be responded to within a prescribed period, even if the response is merely that no record exists. Federal FOIA law requires a response within 20 business days unless “unusual circumstances” exist. Each state may have its own time requirements.
Appeals of Denials
Oftentimes, a requestor may receive a denial. In these cases, the laws should be checked for the appeal process. Federal FOIA appeals are directed to the Appeals Office, www.doi.gov/foia/appeals, while each state may have their own separate procedures.
New Jersey has set up an oversight committee called the Government Records Council (GRC). The function of the GRC is to mediate disputes between the agency and requester. Citizens may also elect to bypass the GRC and begin a summary (expedited) lawsuit in the Superior Court for quicker resolution.
Carefully consider your options when filing an appeal and inquire about the expected time of your hearing. In New Jersey, GRC hearings have taken upward of 18 months for a pending matter to be scheduled. Once you accept mediation as an option, you forgo your rights to take the matter to court. Carefully consider all options before making a decision.
Citizen Advocacy Groups
Advocacy groups will often do the work for you. They are driven by a mission to ensure transparency in government and can be both familiar with and helpful in the process of requesting public records. In New Jersey, one such group is known as “The OPRA Machine” (opramachine.com).
Work Arounds – All is Not Lost
At times, specific documents may either be exempt or nonexistent. In these cases, creative thinking and workarounds can sometimes be employed. Documents such as marriage licenses may not be publicly available documents, but the record of fees paid by one of the spouses may be. I am often asked to investigate relationships, evidence of previous marriages or proof that an ex-spouse remarried, which would have an effect on the continuation of alimony payments.
In working around this specific exemption, one would first have to know the fees for the application of a marriage license is set at $28.00 by the state and universally applies regardless of which municipality the application has been filed in. A request for copies of receipts of all fees of $28.00 paid to a municipality by a former spouse or their paramour can be instrumental in discovering a remarriage or potentially used to convince a court there is enough evidence to warrant a subpoena be issued for otherwise exempt documents.
About the Author
Steven Vardakis is a New Jersey Licensed Private Investigator and a former President of the New Jersey Licensed Private Investigator’s Association. Prior to becoming a private investigator, he was a career law enforcement officer and the police department’s Support Service Commander. His responsibilities included the title of Custodian of Police Records during New Jersey’s enactment of the Open Public Records Act. He subsequently received training by the Government Record Council and authored the policy of compliance for the local government.
