9 Replies Latest reply on Aug 15, 2017 12:53 PM by Michael Tomko

    Is an attorney required to file a successful FOIA judicial review?

    Bill Streifer Adventurer

      Here's how a FOIA request process works:

       

      1. First, you file a FOIA request with a U.S. Govt. agency.

      2. The agency can respond in a number of way, including the following: they can release documents; they can say no documents were found; they can say documents were found but they can't be released for a number of reasons, including their classification.

      3. The agency then offers the filer to appeal the agency's decision.

      4. Again, the agency can respond to the appeal in a number of ways.

      5. If the agency continues to say that no records can be found, the filer has the right to judicial review at a federal district court.

      6. In the past, I have received documents after appeal. I have also received the response, "no records found." If you've ever seen a response to a FOIA appeal, you will quickly notice that the response is a legal document.

       

      When you request a judicial review, the judge considers your original FOIA request, the agency's response, the appeal, the agency's response to the appeal, a legal document signed by an attorney. If you're going to convince a district judge to prevail over a government agency, I think the original filer needs the help of an attorney if he/she is to have any chance of victory in requesting a judicial review. What chance does an individual have, without the help of legal council, when going against an agency with access to a bank of agency attorneys?

       

      I intend on requesting judicial review in response to one or more FOIA appeal denials. I have already obtained documents -- concerning Manhattan Project patents, the 1968 Pueblo Incident, etc. -- through FOIA appeal, and hope to obtain more. If you know of an attorney who would like to see these important historical documents released, please have them contact me..

        • Re: Is an attorney required to file a successful FOIA judicial review?
          Jose Aleman Wayfarer

          What exactly is FIOA  REQUEST.  And what US GOVT agency do I request from.

            • Re: Is an attorney required to file a successful FOIA judicial review?
              Michael Tomko Adventurer

              I am not a subject matter expert, but a FOIA request, is a Freedom of Information Request, under 5 US Code 552. It is a legislative law, whereby citizens can request records from the Federal Government.  It does not pertain to private companies or corporations. Please google and research the FOIA Improvement Act of June 30, 2016. The federal agency has 20 days, and an extra 10 days to provide its records. Their are National Security (b)(1) and Legal exemptions, which can be redacted (removed from public disclosure). It was implemented in 1966, and again in 1974 after Watergate. What's Watergate? FOIA laws help prevent inappropriate secrecy, abuse and corruption. Each government agency has a FOIA office or team. Usually the records are transferred to the National Archives after 25 years. Sometimes they are not for various reasons. The CIA and FBI have electronic reading rooms of records that have been declassified. NARA has recently released its records concerning the JFK Assassination..  Here's a link to help explain FOIA.

               

              https://en.wikipedia.org/wiki/Freedom_of_Information_Act_(United_States)

            • Re: Is an attorney required to file a successful FOIA judicial review?
              Michael Tomko Adventurer

              Unfortunately. many people do not realize, you do not need an attorney to file a federal lawsuit or tort. It is done by prisoners routinely after their administrative remedies are exhausted. Some are very good, since there are actually lawyers and judges who are incarcerated. In many instances the suit is filed as to merely bring recognition to an unjust or questionable policy or practice. The suit must be filed, and the US attorney in the region must also be served, as I remember. Once light is brought upon the issue, the policy or practice may suddenly change. The courts and judges do not want to be burdened with these issues that can usually be solved at a lower level. Prisoners must exhaust their remedies at the local, regional and national level. They know that the case will most likely be dismissed. But it brings light to an issue, such as inadequate programs, food or medical care.

               

              The judge or US Attorney will usually review the issue and make some calls as to do some informal discovery. In the case of agency FOIA's the Agency will be represented, and the cost comes from the agency FOIA budget. The specific information that has been denied should be cited, as to ensure the records  or data base has not been corrupted or destroyed.

               

              As you may be aware, there are also guidelines for agency contractors. FOIA's have increased, and the court system does not want to be over burdened with citizen suits. They are time consuming, even when dismissed. But many

              citizens believe they must hire an attorney. It all depends on what the ultimate outcome is? Do they just want exposure brought to the issue?  Even a dismissed case can be a win, when dealing with sunshine, past practice and corruption.

              • Re: Is an attorney required to file a successful FOIA judicial review?
                Michael Tomko Adventurer

                Also consider that many agencies now use contract FOIA staff as to search and process the FOIA's. The staff could be a mixture of contract and agency staff.  The agency staff usually approves the FOIA.  In some agencies with TS data, it may be all agency staff.  But this is changing as more agency functions are contracted. The representation is usually provided  by the DOJ, or the agency may have general counsel staff on board. But each instance will require time, research and preparation for a court challenge.  It all depends on the level of worth, in protecting the data, and the amount of staffing, communication and travel. As more Court FOIA challenges occur, then the time, preparation, quality and quantity of legal representation diminishes. In this regard, even a simple legal challenge becomes a win. Policies and Practices usually change as challenges become more common. This is obvious in the correctional system.

                It all depends on the legal tactic.  Bringing a case forward to win, is much different than bringing a case forward for exposure.

                • Re: Is an attorney required to file a successful FOIA judicial review?
                  Michael Tomko Adventurer

                  In my opinion the Classified Patents will be firmly defended, and even the judge may be denied access. The incident and redactions concerning the USS Pueblo may be possible, since the ship is still commissioned and held by North Korea. Perhaps the military option of Strategic Patience will continue with a hopeful unification?

                  • Re: Is an attorney required to file a successful FOIA judicial review?
                    Michael Tomko Adventurer

                    I remember the Title 42 USC Sec 1997 requirements. And there are also elements of Title 42 USC Sec 1988, which are usually recovered. The discretionary aspect must also be reviewed under the 2006 FOIA legislative changes. It is also important to view the difference, and definition of records verses evidence. The denial of evidence and its implications and rights by law of the citizen.

                     

                    42 U.S. Code § 1997e - Suits by prisoners | US Law | LII / Legal Information Institute

                    • Re: Is an attorney required to file a successful FOIA judicial review?
                      Michael Tomko Adventurer

                      The Open Government Act of 2007, specifically addresses litigation fees, and costs once the 20 day deadline is not met. The link at Congress.gov defines the litigation fees in section 4.  This Act also defined agency records, to include information held by a government contractor.  The Congress.gov link is below.

                       

                       

                      https://www.congress.gov/bill/110th-congress/senate-bill/2488