WHAT FOIA CAN DO FOR CLAIMS PROFESSIONALS:

Make You the Office Rock Star is All

Every claims professional has a collection of open files in which some part of their investigation has stalled. There may be an old accident you suspect may produce causation issues in your claim but you cannot find information on it, or you learned about previous damage to property but details are scarce, or you suspect there are witnesses to the loss, but you cannot get the police file. We all have these stubborn, stalled claims. What if I told you that you could get past those investigation obstacles your contemporaries cannot and that the cost of doing so is zero? Interested? 

What is FOIA?

The Claims Professionals’ pro-tip we are talking about is in FOIA. The Freedom of Information Act, or FOIA, is a federal law that establishes the public's right to obtain information from federal government agencies. Anyone can file a FOIA request, including U.S. citizens, foreign nationals, organizations, associations, or even insurers. Each state has one or more counterparts to accomplish the same end for state governmental entities. For example, Louisiana has the Louisiana Open Meetings Law and the Louisiana Public Records Act, also known as Louisiana's Sunshine Law. Whether you will use the federal FOIA law or your state law will depend on which government agency is the target of your request, but for now we will focus on federal law.

What Does FOIA Offer?

A request can be made for nearly any agency record, but not all records are equal under FOIA. Congress established nine “exemptions from disclosure” to protect against specific harms. However, FOIA authorizes agencies to withhold information when they can reasonably foresee that disclosure would harm an interest protected by one of these nine exemptions, which are:

1. Information that is classified to protect national security;
2. Information related solely to the internal personnel rules and practices of an agency;
3. Information that is prohibited from disclosure by another federal law;
4. Trade secrets, commercial information, or financial information that is confidential or privileged;
5. Privileged communications within or between agencies, including those protected by the (a) Deliberative Process Privilege (provided the records were created less than 25 years before the date on which they were requested), (b)Attorney Work-Product Privilege, or (c) Attorney-Client Privilege;
6. Information that, if disclosed, would invade another individual’s personal privacy;
7. Information compiled for law enforcement purposes that (a) could reasonably be expected to interfere with enforcement proceedings, (b) would deprive a person of a right to a fair trial or an impartial adjudication, (c) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (d) could reasonably be expected to disclose the identity of a confidential source, (e) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (f) could reasonably be expected to endanger the life or physical safety of any individual;
8. Information that concerns the supervision of financial institutions; and
9. Geological information on wells.

 Congress has also created special protection within FOIA for three narrow categories of law enforcement and national security records. The provisions protecting those records are known as “exclusions” from the law. Those are:

1. To protect the existence of an ongoing criminal law enforcement investigation when the subject of the investigation is unaware that it is pending and disclosure could reasonably be expected to interfere with enforcement proceedings.
2. To protect the existence of informant records held by criminal law enforcement agencies when the informant’s status has not been officially confirmed.
3. To protect the existence of foreign intelligence, counterintelligence, or international terrorism records held by the Federal Bureau of Investigation and when the existence of such records is classified.

Records falling within an exclusion are not subject to the requirements of FOIA. So, when an office or agency responds to your request, its response will encompass only those records that are subject to FOIA. You may never know that exclusions were applied or that records falling within the exclusion exist.

You can see that some of the exemptions and exclusions are open to broad interpretation. You would be right to think it may be difficult to avoid the exceptions and exclusions to FOIA. In fact, the rate of full grant responses (where you get everything you ask for) is approximately 23% overall. Do not be discouraged though. You can increase your chances of getting a productive response with some crafty writing.  

Free is My Favorite Price.

There is no initial fee required to submit a FOIA request, but FOIA does allow agencies to charge fees in some instances. For instance, an agency can charge for the time to search for and copy records. There is usually no charge for the first two hours of search time or for the first 100 pages of duplication. Your request letter may include a limit on the amount that you are willing to pay in fees. If an agency estimates that the total fees for processing your request will exceed $25.00, it will notify you in writing of the estimate and offer you an opportunity to narrow your request in order to reduce the fees. If you agree to pay fees for a records search, you may be required to pay such fees even if the search does not locate any releasable records.

Where Do I Start?

FOIA.gov is a central resource for the public to learn about the Freedom of Information Act. It may be used to locate records already available and to make a request for information that is not yet publicly available, so it is the best place to start. Before you make a FOIA request, look at FOIA.gov to see if the information you want is already publicly available. You can find a lot of useful information on a range of topics on each agency’s website. You can also search for information federal agencies already posted on FOIA.gov.

If you find what you are looking for is not publicly available, you can submit a FOIA request to the agency’s FOIA office. Most federal agencies accept requests by web form, e-mail, or fax. You can also specify the format in which you wish to receive the records (printed or electronic form). The law does not require agencies to create new records, conduct research, analyze data, or answer questions when responding to requests, so be careful in phrasing your request to limit them to data already existing. It is just too easy for the agency’s FOIA clerk to send a rejection letter if your request sounds like it is asking the agency to analyze data or generate new data.

Each federal agency handles its own FOIA requests. There are currently one hundred agencies subject to FOIA, with several hundred offices that process FOIA requests. Your request will receive the quickest possible response if it is addressed directly to the FOIA office of the agency or agency component that you believe has the records you are seeking. A comprehensive list of federal agencies and their contact information can be found at www.foia.gov/#agency-search.

When requesting information about another person you will receive greater access by submitting an authorization form from that individual permitting the disclosure of the records to you, or by submitting proof that the individual is deceased. If you request records relating to another person, and disclosure of the records could invade that person’s privacy, they ordinarily will not be disclosed to you.

How do I make my FOIA Requests Effective?

Every Claims Professional knows how precious time can be. Wait times for FOIA responses presently average 140 days. FOIA has a 20-business-day mandate written into the law, but only 39% of requesters get a meaningful response in that time. You may want to account for the wait time when you are deciding whether to make a request. Having to wait all that time to get a response only to be rejected is unacceptable, so your first request must be smart and effective. Here are some tips to make your FOIA request letters count:

1.     In the FOIA World, Brevity is not Your Friend. Requests that are very short, say no longer than a tweet, received a full grant response only 17% of the time. That may be because short requests are too broad or too vague. More substantive and detailed requests received a full grant 29% of the time.

Another feature associated with a higher rate of full grant responses was the use of live hyperlinks to online materials to clarify and provide context to the requests. 

Also, requests that significantly ask for “data” were given full grants at a 12% higher rate than other requests. There is a considerable variation from agency to agency in how this word is acted upon. The word “data” produced only a 4% increase in requests made to the Department of Commerce.

2.     Not All Conventional Advice is Helpful. When you start making FOIA requests regularly, your desire to improve will lead you to one or more FOIA request writing guides. Many guides counsel that you should make your requests as formal as possible. In fact, formality does not seem to help much at all. Of requests beginning with “Madam FOIA Officer” or “Dear Ms. FOIA Officer,” almost none received a full grant response. Other guidance, such as referring to the Freedom of Information Act, or providing a telephone number and email address, also did not seem to produce positive results. These suggestions do not appear to hurt and may even serve a function, but they do not increase your chances of a productive response.

3.     Be Specific. By using identification numbers for facilities o documents, requests to the EPA saw probabilities for a full grant response jump from 42% to 64%. When an identification number is not available, a detailed description of the documents you want, including a date range, and the location where the documents are kept produced the best results.

4.     Know the Agency Holding Your Records. The agency may tell you how it organizes its records on its website. For example, the EPA lays out specific instructions for how to submit a FOIA request to them. FOIA.gov offers contact information for offices hidden within larger agencies. Calling an agency’s FOIA officer can be the best way to understand the agency’s records system.

5.     Check online. Effective FOIA requests are a passion for some, and there are active FOIA communities online sharing tips about making effective requests to a specific agency. It may be a good investment to spend some time there.

6.     Know Your Rights. You are entitled under FOIA to an estimated completion date. You may request, through a second FOIA request, the processing notes from your initial FOIA request if you believe it was mishandled. You may appeal any denial of records. You also have the right to request that documents be declassified and released to the public.

FIA is not an everyday tool. It is not as robust as the discovery process during litigation. For your pre-litigation claims in which there is something that could change the outcome of your claim but is just outside of your reach, FOIA can make a genuine difference. Consider a FOIA request a simple, low-effort tool to making your claim closure rate the best in your department.

If you found this post helpful, please click the thumbs up icon, comment, or share it with a colleague. Any feedback is welcome.

Lance E. Harwell is a Member of Staines & Eppling, LLC practicing, publishing, and presenting seminars in the fields of general liability, insurance coverage, bad faith insurance claims handling, auto liability, longshore, Louisiana worker’s compensation, fire, and property defense. He is an AV-rated attorney, a Melvin Jones Fellow, and a recipient of the APAS Frank Hara Memorial Award for community service. When he is not practicing law, Lance often volunteers with the Louisiana Bar Association, Project H.E.L.P. (Homeless Experience Legal Protection), the University Park Lions Club or the Asian-Pacific American Society. Otherwise, he can be found cheering for his Louisiana Ragin’ Cajuns. He is married to a woman he does not deserve and is the father of one really great son.

The opinions and comments expressed above are those of Lance E. Harwell, who is not responsible for the inaccuracy of content or any loss or damages incurred by any party as a result of reliance on information contained in this article. The article may not be published or reproduced without the written consent of the author. Prior articles may not be updated for accuracy as pertinent information changes over time. The content of this and other articles composed by Lance E. Harwell provide general information not specific to any particular case or set of facts and should not be construed as legal advice, nor do they establish an attorney-client relationship.