The FOIA/PA for state and federal inmates and private citizens
Freedom of Information/Privacy Act explained (Last of a 4-Part Series)
By Gary Callahan, Prisoner of the Drug War
Generally speaking, FOIA/PA lawsuits are short, direct and
to the point. The complaint will be styled as you the Plaintiff,
your address and phone numbers versus the agency which withheld
the information as the Defendant and that agency's address and
phone numbers. The complaint should state at least the following:
1) that it is an action under the Freedom of Information Act
to order the production of agency records previously denied;
2) that the Court has jurisdiction over the action (must cite
appropriate state statutes if state action); 3) that the Plaintiff
is a prisoner and where (or a private citizen and address); 4)
that the agency is a department of the United States (or of an
individual state) and 5) that the agency has possession and control
over the records that the Plaintiff seeks. The following is a
short complaint delineating the proper federal statutes for an
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF
1. This is an action under the Freedom of Information Act (FOIA), 5 USC S 552, as amended, and the Privacy Act (PA), S USC § 582a, to order the production of agency records previously requested by plaintiff pursuant to the above-referenced Acts and which requests have either been ignored or denied by the defendant agency.
2. This Court has jurisdiction over this action pursuant to 5 USC § 552(a) (4) (B) and 5 USC § 552a(g)(l)(B); (g)(l)(D); (g)(3)(A); (g)(3)(B); (g)(4)(A) and (g)(4)(B).
3. Plaintiff, John Doe, is a federal [state] prisoner in the Federal Correctional Institution at Big Spring, Texas. He is the requestor of the withheld records.
4. Defendant Bureau of Prisons is an agency of the United States, and it has possession of, and control over, the records that Plaintiff seeks.
5. The following is a list of the requests made by Plaintiff to the defendant agency and disposition, if any: [this is an example only]
On 10/15/96, plaintiff mailed a FOIA request to the defendant agency. On 10/24/96 a response was received in the form of the standard "10 day letter" assigning a request no. 96-61. No responsive records were furnished and Plaintiff submitted an appeal designated as A-l on 2/3/97. No responsive records resulted from that appeal. On 4/2/97, plaintiff received yet another "10 day letter" from the agency but no responsive records were sent. A true copy of the above request, appeal and letters are attached as Exhibit A.
6. Over ten (10) working days have passed since the Bureau of Prisons received Plaintiff's FOIA/PRIVACY ACT requests and he has not received the responsive records and documents as indicated in paragraph 6, exhibit A. Over twenty (20) working days have passed since the Office of Information and Privacy received plaintiff's appeals and he has not received the responsive records and documents as indicated above. The agency has not claimed any exemptions for nondisclosure that are identifiable under the FOIA or the Privacy Act.
7. Plaintiff has a statutory right to the records that he seeks, and there is no legal basis for the defendant's refusal to disclose them to him. Plaintiff has made a showing that the Federal Bureau of Prisons has improperly withheld agency records.
8. Therefore, Plaintiff prays that this Court:
(1) Declare that defendant's refusal to disclose the records requested by Plaintiff is unlawful;
(2) Issue an injunction to prevent the Bureau of Prisons from relying on their invalid practice of either a) not responding at all to FOIA/PA requests, or b) responding 11 with a standard form "10 day letter, and then not taking any action honoring or denying the request;
(3) Make a written finding that the circumstances surrounding the withholding raise questions whether there has been arbitrary or capricious agency action and make a referral of the matter to the Merit Systems Protection Board for investigation, pursuant to subsection (a) (4) (F);
(4) Award Plaintiff his costs and reasonable attorney's fees in this action;
(5) Expedite lawsuit pursuant to 28 USC § 1657(a) ; and
(6) Grant such other and further relief as the Court may deem just and proper.
Signed this ___ day of________19 ____
John Doe - 1900 Main Street
I declare under penalty of perjury that the foregoing is true and correct. ____________(Signature
This document is hereby filed on the ______the day of __________,
19_____, pursuant to the holding in Houston v. Lack, 487 US 266
(1988), by placing it in the prison mail receptacle designated
for outgoing legal mail.
(Example NO. 5)
July 4, 1998
Clerk - United States District Court
RE: JOHN DOE V. ( AGENCY)
Enclosed please find for filing the following documents:
1. COMPLAINT, 5 originals.
2. SUMMONS, 5.
3. APPLICATION TO PROCEED IN FORMA PAUPERIS, 2 originals.
4. PRISONER TRUST ACCOUNT REPORT, 1 original and one copy.
5. CONSENT TO COLLECTION OF FEES FROM TRUST ACCOUNT, 2 originals.
6. CIVIL COVER SHEET, one original.
Pursuant to 28 U. S.C. s l915(c), I request that you effect service of the SUMMONS and COMPLAINT on the defendants.
[note: you must include a copy of the complaint and a summons for The Honorable Janet Reno, Attorney General of the United States; one for the U. S. Attorney, Civil Division; one for the Agency, and; two for the Clerk - be sure to use their correct addresses]
Hopefully the foregoing will be of benefit to those of you seeking information from agency files or your own personal records maintained by a state or federal agency. For those of you anticipating litigation with an agency sometime in the future, the FOIA/PA can be an invaluable adjunct to civil discovery for the simple reason that in order to get discovery you must show how the information is relevant to your case; with the FOIA/PA you do not and this is a big difference. The FOIA/PA is therefore much broader in scope since relevance is not an issue. Remember to start well in advance of your anticipated law suit. If you must sue, then you must order the local court rules from the District Court and follow them to the letter. If the local rules state you have to two-hole punch all documents filed, then you must do it. If you don't follow the local rules, the Clerk does not have to file your pleading. Always include a cover letter showing what you are filing. Always include a certificate of service (except with the complaint). If you follow this advice your law suit will go smoothly. In upcoming articles we will explain the exemptions the agency may claim to deny you access to some of the records requested. Since the exemptions are discretionary instead of mandatory, you may be able to successfully argue for their release. The FOIA/PA can be an important tool, even for finding newly discovered evidence with which to file a second, successive § 2255, but like any tool, you have to know how to use it - and now you do. Good luck.
For a downloadable Adobe Acrobat (PDF format) copy of the entire FOIA/PA Explained series, CLICK HERE