This week's FOIA Friday takes a look at a legal technique called a "reverse FOIA" lawsuit. These cases are always interesting and occur when a third party seeks to block the release of documents that have been requested under a Freedom of Information Act request.

The basics of reverse FOIA

if you've been following FOIA Friday, you know that the usual reason organizations don't get back the documents that they request from governments is that the agency has invoked one of the exemptions allowed under law to not release records. Some of these exemptions involve the right of an agency not to release "personal information", but there are grey areas as to what that actually means in practice, and there's a level of discretion used to decide what is appropriate and what is not.

The basis of a reverse FOIA lawsuit is to ask a court to rule that documents requested under FOIA should not be released. The lawsuits typically occur because the agency whose records have been requested has notified a third party of a potential data release that they might object to.

The case of Chrysler Corp. v. Brown, 441 US 281 - Supreme Court 1979, is the most frequently cited reverse FOIA case at the federal level. Without going into more detail than I actually understand, Chrysler sued to prevent release of certain employment records at its Delaware plant that had been filed as part of equal employment opportunity regulations. The court found that Chrysler had a narrow and specific standing to sue on the grounds that the release of the records would be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."

Public databases contain all kinds of private information that should not be shared widely. Trade secrets, account numbers, pending criminal investigations and other data routinely collected by the government can and should be redacted before being released to the public. When there's contention, there's a remedy, in the form of a reverse FOIA lawsuit that invokes this "abuse of discretion" line of reasoning.

The Department of Justice Reverse FOIA guide has a lengthy discourse on this, which I included here for reference.

Protecting trade secrets

The recent case of United Technologies Corp. vs Department of Defense was noted by federal watchdog organizations and government contractors. It concerned the release of information about problems with quality control on Blackhawk helicopters. WTNH 8, a television station in Connecticut, asked for the information in a 2007 investigation about defective parts being installed on the helicopters, and United Technologies sued to block release. The Washington, D.C. Circuit Court ruled that the Defense Contract Management Agency acted "arbitrarily and capriciously" in deciding to release the information under FOIA.

WTNH's Alan Cohn won a Peabody Award for this investigative work.

The best commentary has been from Mandy Smithberger, an investigator at the non-profit Project on Government Oversight (POGO). Listen to her interview on Federal News Radio, or review POGO's analysis of the case:

"Though there clearly is an interest in protecting true proprietary secrets, Sikorsky's attempt to stifle information that may reflect poorly on their aircraft is something else. It is a move characteristic of a company seeking to avoid public accountability and to hide deficiencies in the aircraft we entrust will transport our men and women in uniform safely, securely and effectively."

FOIA as a business plan

Remarkably, in the course of writing this article I found a company FOIA.com which specializes in managing FOIA requests on behalf of its clients. Freedom of Information Act requests for competitive bidding information can unearth commercially valuable information, and this private company provides a path to shield the origin of such requests. Tellingly, they also offer "reverse FOIA" services to challenge the release of your information that is in government hands.

Reverse FOIA in Howell teacher email case

In Michigan, the reverse FOIA case that we're tracking considers Chetly Zarko's request for copies of electronic mail messages between teachers and union representatives in the Howell schools, mail that was sent using school computers. The Howell Board of Education sued to block the release of these emails, and the case has been making its way through the courts. Most recently, the Court of Appeals ruled in the favor of the teachers; Zarko has requested that the Michigan Supreme Court hear the case.

The Mackinac Center for Public Policy, a conservative and free market think tank, has prepared an amicus brief in this case, spelling out the case for disclosure of these records. The analysis notes the key Michigan case regarding reverse FOIA, Bradley vs Saranac Community Schools Board of Education, 455 Mich 285 (1997).

Like the Chrysler v Brown case above, Bradley vs Saranac is complex enough that I am not prepared to do it justice. The Michigan court finds itself looking closely at the balance between a "clearly unwarranted invasion of an individual's privacy" and the right for the public to inspect public records.

More details on this development in the case are found in a recent Livingston Daily article. I wrote about this previously in February, and Ryan Stanton's full story on the original case ran in January. More links to past coverage are found at the Sunshine Review.

Note that several teacher contracts contain specific FOIA clauses where specific types of FOIA requests, e.g. for lesson plans or personnel records, trigger administrative procedures that give the teacher or the union enough time to file a reverse FOIA suit to block access to records.

What's interesting

Relatively few reverse FOIA cases are filed at any level. Where they are, they follow a pattern where the disclosure of information by governments would inconvenience, embarrass, or do harm to the reputation or business of a government employee or contractor. It's not well trodden legal ground, based on the relatively few sources I was able to find for this story; what is clear, however, is that a reverse FOIA lawsuit drastically increases the costs of retrieving contentious public records well above the usual copying and administrative costs charged by government agencies.

Any FOIA request placed by any individual or organization might be challenged by a reverse FOIA suit, if the aggrieved parties are notified in time. If you're working on a project that involves providing records to a government agency, the disclosure of which would cause you harm, it would be worthwhile to consider what kind of language to add to those documents that would trigger the agency holding the documents to notify you if they were to be released.

Edward Vielmetti goes on fishing expeditions for [redacted] for AnnArbor.com. Contact him at edwardvielmetti@annarbor.com.