Using FOIAs to unlock hidden information
In March 2024, news organizations and civic groups across the country will be hosting events and trainings for Sunshine Week—an annual, week-long initiative that promotes the importance of government transparency and allowing citizens access to open meetings and public records.
The nonpartisan event, which occurs this year from March 10 to 16, was started in 2005 by the American Society of News Editors, later called the News Leaders Association. In December 2023, the Joseph L. Brechner Freedom of Information Project at the University of Florida took over as organizer of Sunshine Week.
When working as a journalist years ago, I used open records laws to get information on elected officials and the inner workings of government agencies. However, these same laws are also extremely useful to me now as a professional investigator. From uncovering a public university’s report outlining allegations of sexual abuse, to obtaining government emails describing safety concerns at a location of interest, public records laws have allowed my colleagues and me to unearth crucial information that we would not have found otherwise.
Freedom of Information Act
A key law promoting government transparency is the Freedom of Information Act (FOIA). The law, which took effect in 1967, gives the public the right to request access to records from U.S. federal agencies. Democratic Congressman John Moss originally advocated for the bill in 1955 after an increase in government secrecy during the Cold War, according to the civil liberties nonprofit Electronic Frontier Foundation. President Lyndon B. Johnson, also a Democrat, opposed the bill but ultimately signed it into law on July 4, 1966. The law has undergone several amendments since then, including the addition of new requirements in 1974 following the Watergate scandal.
Under FOIA, federal agencies must release the requested information unless it falls under one of nine exemptions established by Congress, which are designed to protect personal privacy, national security, and other interests, according to foia.gov.
Additionally, individual states have their own laws outlining citizens’ rights to obtain public records from state and local government agencies. The individual state laws have different names and the details of each vary, but these public records requests are all often referred to informally as FOIAs or FOI (Freedom of Information) requests.
Using FOIAs in Investigations
Most often, I’ve used open records laws to submit requests to law enforcement agencies for information on arrests and calls for service involving a particular person or address. This is because law enforcement officers are involved in and document many more incidents than those that result in criminal charges. Police departments maintain records about these points of contact, which can often be obtained through a FOI request. These documents can reveal red flags that one may not find by searching the local courthouse. They can also report biographical and other important information about the person. By obtaining police incident reports through public records requests, my colleagues and I have found details about a subject’s past concerning behavior; evidence of physical or emotional violence; references to a subject’s physical and mental health, financial, or family issues; information on a person’s living situation and employment; contact details; and relatives and associates.
In one case, a company fired a long-time employee after months of concerning behavior. Company officials worried this person may hurt herself or others. I looked into her background to see if she had a documented history of violence or harassment, or if she had any stressors in her life that might explain her behavior changes. This person had no criminal history and a good reputation both online and in the press. However, through FOI requests to local law enforcement agencies, I discovered she had attempted suicide and struggled with substance abuse and marital issues.
In one of my most memorable cases, I investigated an individual who was threatening our client and, through police incident reports obtained by records requests, learned the subject had a history of self-mutilation, alcoholism, and domestic disputes in which the police were called. I learned the subject also engaged in a lengthy dispute with a neighbor whom the subject had been videotaping without his permission.
From records obtained through FOI requests, my colleagues and I have also learned:
Numerous students made allegations of sexual harassment against a well-known professor at a public college.
A client's chief competitor was receiving preferential treatment from a government body in the procurement process of a multimillion-dollar public contract. As a result, the public body halted and restarted the bidding process.
The manager of a local business said in emails to a city agency that she needed police assistance because of numerous safety issues at a particular location of interest.
The financials a subject company submitted to the city as part of a Request for Proposal (RFP) for a municipal-backed development.
The underlying applications select individuals and entities filed with a local liquor authority.
How to Make a FOIA Request
When I want information from a government agency, I first look to see whether it is already available online. Many government agencies post records and datasets online with a lot of useful information, and you may find that what you are looking for is already publicly accessible. MuckRock.com is another place to look for FOI requests that have already been submitted. If I cannot find the information I need, I then start the process of filing a public records request.
Unfortunately, there is no central repository where federal, state, and local governments store their records. So, the first step in filing a FOI request is determining the appropriate agency (or agencies) to which to send the request. For example, if I am interested in obtaining records of calls for police service to a particular address, I need to figure out which law enforcement agency or agencies may respond to that address. In some cases, it could be more than one, such as a city police department and county sheriff’s office. Some places also have a separate agency in charge of housing records for 9-1-1 calls.
After determining which agencies to send the request to, I then research the appropriate way to send the request. This also varies by agency. Some agencies ask researchers to submit requests via an online form through their website; others prefer that requests be sent by email, fax or traditional mail.
Next, I draft the request in writing and specify what records I am requesting. Often, I will ask for records of any arrests or calls for service associated with a particular person and/or address. I specify that I want any records involving the subject, whether as a defendant, suspect, complainant, witness, victim, or subject of interest. I also make sure to include records of calls for service to specific addresses because not all records may list a person’s name, but the fact that police were called to a subject’s address would still be notable.
In my experience, each agency operates differently, maintains records differently, and even interprets the law differently. Therefore, how much information one gets back—and whether certain details are redacted—will vary by agency. Take some time to determine what recourse you may have for an appeal if your request is denied.
Obtaining the Records
Once you submit the request, sit back and wait for a response. Federal agencies must respond to requests within 20 business days unless there are “unusual circumstances,” according to the Department of Justice. State public records laws have their own rules governing how long state and local agencies have to respond. Sometimes an agency’s response may simply be that it needs more time to process your request.
The format of the records you get—and how they are sent to you—can also vary. Typically, the records I’ve gotten from public records requests are paper or electronic documents, such as police reports. However, my colleagues and I have also obtained video and audio files or spreadsheets as a result of public records requests. I typically ask agencies to send any records to me by email. However, in some cases that is not possible. I’ve had agencies print out records and ask me to physically pick them up. Others have sent me records in the mail. Recently one of my colleagues was given records from an FOI request on a CD-ROM. Thankfully, another one of my coworkers had an old CD drive in his basement.
A word of caution: The FOI request itself is generally considered a public record. Certain government agencies will even post an online log of all the requests it has received. How much information is posted on the logs varies by agency. Make sure your clients are aware of these risks before submitting the request. A plus side of people hiring a private investigator to submit the request is that the PI will be shown as the requester, not the client.
Also keep in mind that obtaining public records is not always free. Thankfully, agencies have often responded to my requests without charging me. However, agencies may respond that they need to charge a certain amount of money to obtain copies of records or to cover the amount of time it would take for employees to research and compile your request. You can also research whether you may be eligible for a fee waiver.
Practice Makes Progress
Need practice? Go ahead and try filing a public records request with a government agency and see what you get back. It doesn’t even have to be for work. My colleague, an avid hunter, submitted an FOI request to the Illinois Department of Natural Resources to determine how many hunting permits were issued per public hunting site for each season, compiling 20 pages of printouts into a spreadsheet to analyze.
For more information on Sunshine Week and filing FOI requests, visit www.sunshineweek.org.
This article was published in the March/April 2024 issue of PI Magazine. Some details in the above scenarios have been changed for confidentiality reasons.