Trial Magazine

The federal Freedom of Information Act (FOIA) and state counterparts require the federal government and covered state agencies to produce documents within a set amount of time for a nominal fee.¹ You can use these powerful tools—even when the government is not a potential defendant—in a wide range of disputes including motor vehicle collisions, premises liability cases, property disputes, and cases involving government-regulated or government-licensed people or entities.

Be aware that the federal and state FOIAs differ on many issues. For example, Oregon exempts or conditionally exempts 82 categories of documents from its FOIA, while New York exempts 13.² For federal FOIA requests, there are only nine exemptions.³ Likewise, some states permit only their own citizens to file FOIA requests,⁴ while others allow requests from out-of-state residents.⁵ Research your jurisdiction’s FOIA to know how best to use it.⁶

When possible, submit FOIA requests before filing suit. While state FOIA fees vary, a typical motor vehicle case will range from $20 to $100, and a premises liability case that potentially involves government-owned property likely will run between $50 and $250. The results can provide key information about control, knowledge, intent, standard of care, and collectability of a judgment, all of which will help you craft a theory of the case and frame a more compelling complaint against the correct defendant. Obtaining relevant information about a potential defendant can help identify the proper parties and may alert you to other potential parties. By having this information early, you can frame appropriate discovery requests and avoid dead ends and pitfalls.

FOIA request information can also help identify witnesses before their memories fade or they move away. For example, if a car crash witness calls 911, you can use the call logs to identify and contact the witness while the incident is still fresh in his or her mind. Because some jurisdictions maintain certain types of public records for a short period of time, filing a prompt FOIA request also ensures that you obtain relevant information before it’s lost or destroyed.⁷

Government Defendants

When litigating against the government, filing FOIA requests early to obtain discovery is crucial. For example, in a defective premises liability case, you can request records regarding prior similar incidents, complaints, and lawsuits against the state, municipality, or agency. You can also ask for information about safety policies and procedures, control of the premises, subsequent remedial measures, construction plans, maintenance history and schedules, and investigation materials. These records may help you overcome immunity defenses and establish that the government had control over the premises or actual or constructive knowledge of the defect.

In excessive force or other police misconduct cases, use FOIA requests to discover prior incidents of similar misconduct in police reports, internal affairs investigations, and officer discipline records. You also can obtain copies of all 911 calls and police radio transmissions concerning the incident or prior related incidents.

You may get a lot of the same information in formal discovery, but a key benefit of using FOIA is that the government cannot object to FOIA requests on the grounds that the request is overbroad, unreasonably burdensome, or irrelevant. If the documents you request are not exempt from your jurisdiction’s FOIA, the government must produce them. But keep in mind that a few jurisdictions, either through statute or case law, do not permit litigants to use FOIA in addition to formal discovery when involved in civil or criminal litigation against the government.⁸

Private Defendants

FOIA requests can be useful in a variety of cases against private defendants.

Motor vehicle crashes. If your case involves a crash at an intersection, use a FOIA request to obtain traffic light sequencing from the municipality or other agency that controls those traffic signals. The sequencing information may tell you whether the green left-turn signal is automatic or comes on only when a vehicle is in the left-turn lane, how long a light stays green, whether a pedestrian must press the call button for a “walk” signal, and whether the “walk” signal comes on when all vehicular traffic has a red light or while certain lanes have a green light. This information can bolster your client’s testimony and establish that a defendant’s story is untrue. Some states maintain photo logs of their roadways, which can also be useful to obtain. 

If the police were called, request 911 call logs, audio recordings, and photos. The photos and audio recordings can be used as evidence. The police report will identify witnesses, and the call log will identify the phone numbers of the people who called (and often are not listed as witnesses on police reports). If the collision occurred near a government building or in front of a police car, a FOIA request can help you obtain video footage of the crash captured by surveillance cameras or police dash cameras.

Premises and property cases. As in cases against the government, you can obtain prior police reports, investigations, or complaints concerning the property at issue in a premises liability case to determine whether the same defect has injured someone before. For example, if the property owner has a leaking gutter that causes water to discharge and freeze on the abutting sidewalk, a FOIA request to the municipality may reveal 911 calls and police investigations from previous falls. It also may reveal prior complaints made to the municipality’s planning and zoning department.

Likewise, in property disputes, nuisance cases, and land use appeals, FOIA requests to planning and zoning departments can provide land use approvals, conditions imposed on the property, and landowner representations to land use agencies in connection with obtaining entitlements. Land use approvals often contain conditions related to property maintenance or even dictate that certain portions of the property be accessible to the public.

Government-regulated defendants. Many types of defendants are regulated by the government, including health care professionals, financial professionals, tradespeople, taxi drivers, and insurance companies. Use FOIA to obtain materials the defendant submitted to government licensing and regulatory bodies, as well as investigations and complaints against the defendant. For example, in a bad faith claim against an insurer, you can request prior complaints submitted to the insurance department or other agencies concerning similar misconduct by the defendant.

Some jurisdictions have reporting requirements for “adverse events,” which may be useful in medical negligence cases.⁹ Send a FOIA request to the public health department or other appropriate regulatory body to obtain investigative files or adverse event reports concerning your client’s incident or any prior or subsequent incidents involving the defendant. When a defendant is regulated by the government, contact the regulator to determine what categories of information and documentation are maintained, and tailor FOIA requests accordingly.

When in doubt, craft a narrow FOIA request for nonexempt documents you are certain the regulator maintains, as well as a broader request. An agency won’t have to spend as much time searching for and duplicating documents in a narrow request, and you may get the most pertinent records faster. The broader request may take more time and cost more, but it likely will produce additional documents not covered by the narrow request.

Regardless of your practice area or the identity of the defendant, FOIA is a useful resource for obtaining information outside of formal discovery.

Adam J. Blank is a partner and Zachary J. Phillipps is an attorney at Wofsey, Rosen, Kweskin & Kuriansky in Stamford, Conn. They can be reached at ablank@wrkk.com and zphillipps@wrkk.com.

Notes

1. 5 U.S.C. §§551–559 (2016). See, e.g., Cal. Gov’t Code §§6250–6276.48(2018); Conn. Gen. Stat. §§1-200–1-242 (2017); 5 Ill. Comp. Stat. §140/1-11.6(2017); N.Y. Pub. Off. Law §§84-90(2018). Under the federal FOIA, the government generally may charge fees for record searches, including for duplication at 15 cents per page, and for review. The government must notify the requestor when the actual or estimated fees exceed $25. See generally 5 U.S.C. §552(a)(4)(A); 29 C.F.R. §1208.6 (2018); Fees, Requester Categories, & Fee Waivers, https://foia.state.gov/request/Fees.aspx. 
2. Or. Rev. Stat. Ann. §§192.345, 192.355 (West 2018); N.Y. Pub. Off. Law §87(2).  
3. 5 U.S.C. §552(b). 
4. See Va. Code Ann. §2.2-3704 (2017) (“all public records shall be open to citizens of the Commonwealth, representatives of newspapers and magazines with circulation in the Commonwealth, and representatives of radio and television stations broadcasting in or into the Commonwealth”); Tenn. Code Ann. §10-7-503 (2016) (requiring that all public records “be open for personal inspection by any citizen of this state”); see also McBurney v. Young, 569 U.S. 221 (2013) (upholding the constitutionality of Virginia’s citizen-only FOIA).  
5. See Conn. Gen. Stat. §1-210(a) (granting “every person” the right to inspect and copy public records).  
6. For federal information, see  https://www.FOIA.gov; for state FOIA information, see National Freedom of Information Coalition, State Freedom of Information Laws, https://www.nfoic.org/coalitions/state-foi-resources/state-freedom-of-information-laws.
7. For example, in Connecticut the minimum retention period for 911 call records is only 30 days. Connecticut State Library, Office of the Public Records Administrator, Municipal Records Retention/Disposition Schedule, https://ctstatelibrary.org/wp-content/uploads/2015/05/M7.pdf.
8. See Mich. Comp. Laws Ann. §15.243 (2017) (exempting from disclosure “[r]ecords or information relating to a civil action in which the requesting party and the public body are parties”); Evening Post Pub. Co. v. City of N. Charleston, 611 S.E.2d 496, 500 (S.C. 2005) (discussing “the widely accepted principle that FOIA is not to be used by those under criminal charges to circumvent the limitations of discovery”).
9. See, e.g., Conn. Gen. Stat. §19a-127n. (2017).