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3RD CIRCUIT SHUTS DOWN SOME GOVERNMENT FOIA GAMESMANSHIP

Anyone who has ever sought government records under the Freedom of Information Act knows how maddening the experience can be. Government agencies take much longer than the law allows because they’re so busy (which is like saying it is all right to steal bread from the store because you’re so hungry). Then, they ask you to rewrite your request to make it more specific. If you don’t, your FOIA request gets dismissed. If you do, the agency has you narrow it until it releases nothing. And if you do get any of the records you request, pages are omitted and lines blacked out with only vague references to FOIA exemptions.

Inmate Jim Beiar took on the DOJ over its employment of the usual roadblocks to granting his FOIA request. Last week the 3rd Circuit gave him some relief.

When Jim requested all records that mentioned his name, the DOJ told him to provide a more specific description. When Jim did not do so, the DOJ closed the file on his request because he failed to identify the Criminal Division section he believed would have or maintain responsive records. On Jim’s FBI FOIA request, he sued after the Bureau failed to respond. After he sued, the FBI produced some 1,100+ pages, some of which were blanked out entirely and others of which had large sections excised. The district court dismissed Jim’s claim as moot because the FBI had produced documents to him.

DOJ claimed Jim had not exhausted his FOIA rights because he did not tell the agency which section or subagency might have his records. The 3rd Circuit rejected the government’s position, saying Jim had asked for records mentioning his name, and that was specific enough. “It would be counterintuitive in the extreme,” the Court said, “to require such an individual to have sufficient knowledge of an agency’s organizational units to be able to identify the specific units of an agency that might contain the records sought.”

The Circuit also reversed the district court’s dismissal of the FBI suit, agreeing with Jim that a FOIA claim is not moot where there remain unresolved issues about the adequacy of an agency’s production. The burden of proving that an agency’s refusal to produce records rests with the agency. Where an agency has released documents, but issues about the adequacy of the release are unresolved, a district court cannot dismiss an action as moot.

Biear v. Attorney General, Case No. 15-3873 (3rd Cir. Oct. 1, 2018)

– Thomas L. Root