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FOIA and Personal Injury

Fairfax Injury Lawyer Brien Roche Addresses FOIA and Personal Injury.
Brien Roche

FOIA stands for the Freedom of Information Act. Both the U.S. and all 50 states have FOIA laws. The laws at the state level differ from state to state. You need to know the details of your state law to make a FOIA request at that level.

There are some basics that apply across the board whether you’re dealing with the U.S. or a state.

FOIA Requests Must Be Specific, Substantive and Strategic

Being specific means giving as much detail as possible so that the FOIA officer doesn’t have to go hunting. Make it simple for them. Give them as much information as possible.

Making your request substantive means going after concrete records i.e., records that you have reason to believe actually exist.

Being strategic means using the agency’s own lingo. If they have a particular lingo that they use in terms of identifying documents, then use their lingo. That way you’re more likely to get favorable results.

Also, write your request in plain, narrow English. Use search terms that are narrow and that the person who is likely to do the search will know what they mean. Asking for “any and all documents…” is probably only going to generate an objection. In addition if you know who has the documents, where they are, what date ranges you want and what key words should be used to do the search, state all of that in your request.

Speak with a Live Person

Try to upfront identify who the FOIA officer is, speak with that person and make sure that person understands exactly what you want. When dealing with the US go to You should be able to make your request to any agency from this site.

Also you can go straight to the agency. If that’s the way that you proceed, then try to identify the agency FOIA Officer and deal directly with that person.

Exemptions and Exclusions

FOIA was enacted as an amendment to the Administrative Procedure Act. It shifts the burden to the agency to produce records. There are nine (9) exemptions. The agency is not required to withhold documents that fit within one of those exemptions. Instead the agency may only withhold documents if it “reasonably foresees that disclosure would harm an interest protected by an exemption or if disclosing the information is legally prohibited”. The Supreme Court has stated that these exemptions should be narrowly construed and that the statute is in favor of broader disclosure in order to open agency action to the light of public scrutiny.

In addition there are three (3) exclusions. They allow an agency to respond to a request and completely omit the excluded documents without any commentary. The exclusions are records whose disclosure would reasonably be expected to interfere with enforcement proceedings; records that are maintained by a criminal law enforcement agency under an informant’s name or personal identifier; FBI records concerning foreign intelligence, counter-intelligence or international terror

The Procedure

The agency has 20 business days to issue a response or responsive documents to the request. They can request a 10 business day extension if there are unusual circumstances. The agency’s response within the 20 business days or the 10 subsequent business days should include the scope of the documents it will produce and the exemptions it will claim. It does not need to actually produce the documents at that time. It does need to produce the records promptly after providing its response.

If the determination by the agency is adverse, then you may appeal. The appeal is to that agency. Generally such an appeal is required before filing suit. The agency has 20 business days after the filing of an appeal to decide the appeal.

If the agency has failed to respond within the initial 20-day response period to the request, then the requestor may file suit in federal court without pursuing the administrative appeal. If the agency however responds before the suit is filed, then you must exhaust the administrative remedy.

Filing Suit

Venue is proper in the district where the complainant resides, has a principal place of business, where the records are located or in the District of Columbia.

The review by the district court is de novo. If the agency is withholding documents, it should file a privilege log by specifically identifying the reasons why a particular exemption applies.

Attorneys’ Fees

If you are acting pro se, typically the court will not award attorneys’ fees. If however you are representing your client, then an award of attorneys’ fees is appropriate or if you’re representing your firm, then attorneys’ fees are appropriate.

Are the Documents Already Out There?

Frequently when you make a FOIA request, the agency responds by saying that the documents are otherwise publicly available. Indeed many of them may be. Many of them may be available in the Federal Register. Likewise they are required to publish adjudicative opinions and frequently requested records.

Other FOIA Requests

Some common areas of requests are such things as car crashes. Request the 911 logs to identify who called in the crash. Any call logs dealing with a crash will identify the phone number of the caller. These people may not be listed on the police report. Keep in mind that some public records are only kept for a short time. Filing a prompt request is a good idea. As part of your 911 request you can also request police radio traffic in regards to the event. You may also want prior 911 calls dealing with that same spot where the crash occurred. Call or contact us for a free consult.

In addition in regards to car crashes, you may also want to obtain traffic light info dealing with sequence and how long a light stays green. In addition you can get info about walk signals and how the walk signal may relate to the traffic signal.

You may also obtain photo logs of the roadway. Crashes that occur near a government building or near a police car may be on video.

Premises Cases

In your premises case you may want to get 911 calls to that property and any prior police presence at that address. These may show that the defect that you are claiming has existed for a long time.

If your case is a real estate dispute, any planning or zoning documents may be sought through a FOIA request.

In cases involving people who have a license issued by the U.S., state or local body, you should obtain all prior complaints, license info or other papers maintained as to that person. In addition send a FOIA request to the public health office to obtain any info or adverse event reports about that person.

Two Stage Requests

A good tactic to use is to submit your request in two (2) stages. The first request should be very narrow. Based on what they produce from that request, you should then submit a second request that is broader. The wider net will likely produce a bigger catch.

State FOIA Requests

FOIA requests to the state of Virginia or to local agencies are a little bit different than federal FOIA requests. If the agency refuses to produce documents, then you have to file a lawsuit to compel the agency. In some instances, FOIA requests may be conducted concurrent with litigation against the state. In Cartwright v. Commonwealth Transportation Commissioner, 270 Va. 58, 613 S.E.2d 449 (2005), the Supreme Court held that FOIA is available to obtain documents otherwise obtainable in this eminent domain action.

If the agency does not produce the documents requested, then they are supposed to give you an inventory of what is being withheld and still must produce the responsive documents. They can redact anything from those responsive documents that might be exempt.

If you’re dealing with criminal records, then you might rely upon Va. Code § 2.2-3706.1(D)(iv)(b) which allows you to examine the materials at the police station provided you give a sworn declaration that you need to examine the materials for a potential civil action. 

Call or contact us for a free consult. Also for more info about FOIA see the pages on Wikipedia.

For more information about personal injury, see the other pages on this site.

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Brien Roche

Brien A. Roche has been an attorney since 1976. Mr. Roche is admitted to practice in Virginia, the District of Columbia, and Maryland. In addition to his busy law practice, Mr. Roche is also a published author of several books & articles relating to the practice of law.

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