Using the Freedom of Information Act (FOIA)
by: Rdenfeld • January 10, 2011 • no comments
In my opinion, the Freedom of Information Act is an overlooked tool for criminal defense investigations.
Perhaps the reason most folks don't think of FOIA right away is that it is usually used to request documents from the Federal government. However, FOIA is not limited to Federal agencies. This is a common misconception. A FOIA request can be used any time a drop of federal money touches any agency.
For instance, an attorney once wanted to get internal documents from the Multnomah County District Attorney's Office regarding some domestic violence programs. Since the DA's office had gotten grants from the federal Violence Against Women Act, I was able to use a FOIA to obtain a variety of internal documents.
So you want to know if the Oregon Department of Justice keeps data you need at one of their criminal intelligence divisions. Bring on the FOIA.
If you're dealing with a seasoned agency like the FBI, don't expect a FOIA request to do any more or less than the law. They are used to getting FOIAs from every nutball with a computer who wants their "top secret" file.
But what the law does offer is substantial. You can send a FOIA request to any federal agency with a signed third party release and get a file on anyone they have investigated. You can also do this with deceased persons if you send a notarized copy of their death certificate along with the request.
Where FOIAs are most effective, however, is with smaller agencies unaccustomed to getting them. Dropping a FOIA request on a small agency is like hitting them with a nuclear bomb. It sounds so scary. Such legal language! Do they really have to give you the info you want? Let them figure that one out.
It doesn't hurt to use a FOIA request just to see what apples fall from the tree you are shaking. You might get a phone call from a bewildered staff person that is still more informative than anything you have heard before. As far as I know there is no law against using an FOIA on an agency that isn't federally funded, and it usually doesn't hurt to try. At worst you'll get a stinging rebuke from their attorney saying what an idiot you are, and those look really fine framed on your wall. I have such a letter from a famous writer who told me he hoped blowflies would nibble on my kindler and gentler parts. But that is another story.
Where are FOIAs most useful?
- Federal agencies holding records on our clients, victims or witnesses.
- Criminal justice agencies receiving federal funds that may keep data you want: arrest records, race records, internal audits, internal investigations into crime lab units, etc.
- Social service agencies receiving federal funds that served your client, witness or victim. MANY social service agencies receive federal funding.
- Anyone you have time to bother.
Here is a [sample FOIA template]. Happy FOIA hunting!
Rene Denfeld is a bestselling author, journalist and licensed investigator. www.renedenfeld.com
