By Tara J. Lamer
With words we begin to leave traces behind us like breadcrumbs: memories in symbols for others to follow.Ants deploy their pheromones, trails of chemical information; Theseus unwound Ariadne’s thread.Now, people leave paper trails.— James Gleick
From alien hunters to government conspiracists
to seasoned litigators, the Freedom of Information Act Request has been
inspiring abject terror and unrelenting boredom since 1967. There are
forms for forms that refer to other forms. There are government clerks
who have vacation planned. There are rejection letters upon rejection
letters and then finally, after the whole tragic dance has played out and the
verbiage has been finessed to the point you have forgotten what you were really
after in the first place, there is anywhere from one page by email to a cubicle
full of banker’s boxes of results. In a world of paperwork and fillable
online fields and facsimile confirmations, the Freedom of Information Act
remains the undisputed King.
In the litigator’s world, it is tempting to view
FOIA simply as a routine tool for discovery purposes, for witness
investigations, and for site analyses. Indeed, that is the meat of it and
once someone in your office masters The FOIA Problem,
that person is likely (and rightfully) elevated to the status of “never comment
on personal internet usage time.”
However, the routine tool we all know and hate love has an
often overlooked eccentricity – the ability to FOIA the FOIA.
What?
Yes. Anyone in the world who wants to do
so may draft a Freedom of Information Act Request for a list or log of others
who have drafted a Freedom of Information Act Request, for essentially anything
you can think of that would spur a Freedom of Information Act Request in the
first place. This also applies to any similar state open records
law. A request for a log is (of course) subject to any of the nine
standard FOIA exemptions, but often these requests will go through relatively
unfettered, although the typical thought is to limit the request by certain
dates to expedite the process.(1)
For an example of a typical FOIA log that was
produced in response to a FOIA request, here is an excerpt from the extensive
request log of the Clinton Presidential Library for requests received in March,
2013:
It is unclear from the log whether Mr. Cameron
cares that the world knows he is researching aliens and the possibility of a
conspiracy between the Clinton Administration, Billy Graham, and Steven
Spielberg and/or Kate Capshaw, and I admittedly did not contact him for a
comment. However, the point is that someone, somewhere, for reasons we
may never understand, wanted to know who was requesting documents from the
Clinton Presidential Library in March, 2013, and they received this tidy PDF
document listing.(2) The far left column is the request tracking number,
so in theory, we could very easily submit our own FOIA request to receive the
same documents sent to Mr. Cameron regarding the alleged
Clinton/Graham/Spielberg secret meetings.
As amusing as some of the logs can be, this
little breadcrumb request device is important to outside litigators and
in-house counsel for two main reasons:
One, who has been requesting information about your
client? About your client’s
jobsite/product/legislative history/Federal Drug Administration
correspondence/non-citizen employee filings/insert anything here?
When did this begin? What information has
the requester obtained thus far?
Journalists, opposing counsels, activist groups,
non-profits, embittered former employees, weird online bloggers you have never
heard of – FOIA does not discriminate.
This could signal a nasty surprise is in store
for your client, but by watching the breadcrumbs left by others, you may gain a
significant advantage in your ability to get out in front of whatever is
coming.
Two, what breadcrumbs have you left behind in your own
FOIA request history? While this may not seem relevant offhand, since we tend to
think of the FOIA as anything “public record” – therefore who cares what is
kept in the log – let us go to a hypothetical.
You have a client who is being sued for the
plaintiff’s occupational exposure to a product, and your client was one of many
manufacturers. You do not think your client was distributing in that area
of the country anyway, and maybe there is prior testimony to that effect in
previous cases. Opposing counsel is not prepared to voluntarily dismiss
you (or anyone else) at this juncture, and maybe never will. You get the
idea to submit a FOIA request to state and federal agencies that may have
records related to the exposure site, looking for support for your alternate
causation defense. Someone drafts it, you sign it, and maybe no one
thinks about why the drafter of your request extended the years out to plus or
minus five, just to be safe and make sure you get everything. It is a
common practice.
Your records come back, and great news, you have
a dedicated associate to sift through them, and even better news, there is
loads of evidence of other exposures. You have your neatly culled set of
important documents. You leverage them at just the right time. Your
client is now completely uninteresting to the plaintiff, and after you get a
dismissal, you cruise into your weekend confident that all is well.
The following year, you get another case.
This time, the plaintiff worked at the same site two years after the first
one. What you may not yet know is that your associate from last summer
failed to mention the records demonstrating a first documented purchase of your client’s product two
years after the original plaintiff stopped working at the site. Maybe it
was through a distributor that even your client was unaware of before now, or
maybe your associate stopped reading documents after the last date the
plaintiff worked and then your office manager sent all the (begin air-quotes )surplus
documents (end air-quotes) to the file in the basement to be rid
of them before the office holiday buffet.
Now, here is your situation: the new
plaintiff worked during the distribution period of your client’s product, but
you are filing away on the idea that the distribution never occurred. You
are leveraging your non-exposure argument (and your credibility) every chance
you get to push for another dismissal. You have dropped this case down on your
priority list and weeks of potential investigation time are screaming by, but
you are not concerned, because since one must be exposed in order to be
infected, your causation argument is in the bag.
Unfortunately, you are operating on a partial
set of facts, and it easy for anyone who has ever touched litigation to see
exactly how it happened. If you only remember one thing from this blog entry,
remember this: However innocent the error, anyone who wants
to FOIA your FOIA will find out when you “learned” about the distribution, even
though you never really knew it. This could turn into a very nasty
surprise for you, so be aware of your breadcrumbs.
Finally, it is a lot of
work to prepare and process a sizeable FOIA request, so to FOIA a FOIA simplymust be beyond the fiscal reach and general
patience of most people, therefore most of the time we can bank on them not
doing it. Right?
Wrong. Although record accessibility varies by agency, anyone with an internet connection maynow search FOIA online using any keyword – such as your client’s name,
your firm name, or an exposure site name – that may generate a hit.
Whereas in the olden days, someone may have needed to be willing to take
multiple (snail mail-based) shots in the dark to find that out, the
functionality of being able to search by key words has essentially eliminated
that requirement. If your client’s name (or a product name or a site
name) is in a document, it takes very few clicks to link back to the original
requestor. Was it your paralegal? Was it your
longtime local counsel? Was it you?
Due to the number of documents filtered through
this site, the search process can be admittedly somewhat cumbersome for a
beginning user, but just keep in mind that this information is really now just
a smartphone away. In many situations, of course, this will not
matter. However, if you are concerned about the breadcrumbs you may be
leaving behind you during a discovery investigation, you have some key
considerations:
Who is the frontline person making your request,
and how easily does that track back to you?
Is it sufficiently narrow to avoid
documents that are not currently responsive, yet sufficiently broad to
cover the instant case?
Finally, do you have a system in place to
adequately track both your requests as well as the
content of the universe of documents received, both now and for the future?
Each litigation team marches to its own drummer,
and each sector of litigation has its own concerns. But, in a post-Google
world, the details become more pressing. The internet never forgets,
as they say, so as routine and harmless as FOIA requests can feel, be sure
you are monitoring your breadcrumbs and have identified solutions to the
above. Preferably, solutions that keep you from hitting the Snakebite
Alarm years down the road due to the routine request you will
sign off on tomorrow.
——-
Photo credits:
Snake Bite Alarm: dallasnews.com
1. The nine standard FOIA exemptions are
as follows: (1) Information that is classified to
protect national security; (2) information
related solely to the internal personnel rules and practices of an agency; (3) information that is prohibited from disclosure by
another federal law; (4) trade secrets or commercial or
financial information that is confidential or privileged; (5) privileged
communications within or between agencies; (6) information that,
if disclosed, would invade another individual’s personal privacy; (7) some
information compiled for law enforcement purposes; (8) information that
concerns the supervision of financial institutions; and (9) geological information on wells.
2. In this case, it happened to be the
National Archives making the log request, but it is more fun to think about it
being a mysterious individual somewhere tracking the alien investigations being
conducted by other individuals. If you are into that
sort of thing, anyway.
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