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FOIA Tip No. 3—Getting Information about Someone Else, Not Always Easy

November 23, 2009

So you want to know whether your favorite movie star has a hidden past?  You want to find out if your parents got into trouble before you were born?  You can send a FOIA request for someone else’s records (for example, an FBI or CIA file), but most, if not all, of these records are protected as privacy information under the FOIA and the Privacy Act.  The courts have also interpreted the law very broadly to protect personal privacy, in many cases for good reason (few of us would argue over the government redacting phone numbers or social security numbers).  It may be an uphill battle to get government records about another person, but there are a few strategies you can use to get privacy information released.

First, if you know the individual you are researching is deceased, tell the agency in your request!  Don’t count on them to know or to research whether the person in your request is still alive.  Do a little research yourself—send a copy of an obituary, death certificate, or other proof of death along with your request.  If you prove that the person is dead, the agency generally cannot invoke the privacy exemptions to withhold information.

Second, if you are in contact with your subject, ask if they would be wiling to sign a privacy waiver.  Some agencies, like the FBI, provide a privacy waiver form that you can fill out.  For other agencies, you can simply write a letter, signed by the individual, affirming that they agree to let the agency release their information to you.

Third, if the person is alive but you can’t get them to sign a waiver, there are still a few things you can do:

  • Ask for records differently.  Don’t ask for “all records on Jane Doe.”  Instead, ask for all the records about a particular protest that you know Jane Doe attended, or records for a date range and location that covers Jane Doe’s suspected criminal activity.  Mentioning a person’s name in the request sends up a privacy red flag for the agency—think creatively about alternative approaches.
  • If your subject is well-known or notorious, try to prove to the agency that the existence or content of the records is already widely known.  By refusing to process a request for personal information, particularly in law enforcement files, the agency is saying it cannot confirm that it has any records about the individual, because even this confirmation would invade the person’s privacy.  Agencies are permitted to do this under current law, but it’s not absolute.  In your request letter, highlight any publicly available information about the subject’s criminal activity or investigation by the agency and emphasize the notoriety surrounding the case.  Include press reports or other supporting materials.
  • Show public interest.  Public interest in an agency’s conduct or misconduct may trump privacy in some cases.  If you can phrase your request in terms of agency activity that is of great public interest—for example, the agency made a high-profile arrest of an individual under questionable circumstances—you may have a chance of overcoming the countervailing privacy interests.

To learn more about privacy waivers and law enforcement records, read the Department of Justice’s most recent guidance on the topic.

Finally, if you are looking for FBI records on a deceased famous person, you may be able to find them online without filing a FOIA request.  Check the listing in the FBI’s FOIA Electronic Reading Room.

For more advice on filing FOIAs, check out our guide, Effective FOIA Requesting for Everyone.

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3 Comments leave one →
  1. November 29, 2009 10:55 pm

    My organization, Chicago Committee to Defend the Bill of Rights, wants to conduct some workshops on effective FOIA requests, at both federal and state/local levels. (I did download your very useful guide.)
    We are having a hard time finding someone who would serve as a “coach” for at least one of these.
    Could you suggest a name or two to approach in Chicago area?
    Thanks,
    Bob Clarke, President

  2. December 4, 2009 1:32 pm

    Thanks for your comment, and we’re all very glad that the FOIA guide is getting good use. State- and local-level FOI is a out of our scope, but the National Freedom of Information Coalition is a great resource for anyone interested in local transparency (http://www.nfoic.org/index.cfm).

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