Results 1 to 2 of 2
  1. #1
    Join Date
    Nov 2016
    Posts
    23

    Default How to File a FOIA Appeal in District Court

    Hello FOIA Advisor,

    I am not an attorney but consultant that helps retailers who are enrolled in SNAP (aka food stamps). A retailer based in New York received a USDA letter that accused the retailer of food stamp trafficking. I am side help ( the retailer signs and mails the documents) and helped the retailer request a FOIA:

    https://www.fns.usda.gov/foia/how-make-foia-requests

    I asked for all documents, photos, etc of the case write up. After five months (well after 20 days), they responded with documents but many were heavily redacted. So I did an administrative appeal within 90 days.


    After 350 days (the retailer received the response a week ago), they responded again, denying my administrative appeal. Essentially using the sample language as before Exemption 5/7 etc.
    Now this response indicated that I can file a judicial review. I looked at other FOIA websites and they seem to state we can do this ourselves and have provided very helpful templates which I plan to use. But, I have a number of questions that these websites don't address. I apologize for number of questions but this website seems to have professionals who can help me understand the process a little better.


    1. Do I even need to go judicial? Can I just resubmit a new FOIA again to USDA FNS and restart the process?


    2. If I appeal judicially, do I have six years to file with the District Court?

    3. During that six years, does USDS FNS have to wait for me to see if we will file a judicial FOIA appeal or are they allowed to continue with working on the case ?

    4. If I decide to file a FOIA appeal judicially, this RCFP website suggest I do 1) a short term complaint and/or 2) a Motion for Vaughn Index. Do I need to do both 1 and 2? Can they be filed at the same time? Which takes less time for the government to complete?

    (https://www.rcfp.org/federal-open-go...e-foia-lawsuit)

    5. Can I file by mail? USDA FNS HQ is in DC. I'm assuming Wash DC District Court .Who do I address the envelope to? Any particular group within the court?

    6. The US District Court says filing there cost $505. Dumb question: is this this true for FOIA appeals?
    b) If I do 1 and 2 (from Question #4), are they separate fees for each? Who do I make the check out to?
    c) Do I need to include a check when I request an appeal or can I pay later/ wait for a bill?

    7. If I do a short term complaint. I will also include all the dated documentation USDA sent me. And I will include a prepaid postage return envelope. Anything else I'm missing?

    8. If I do file a judicial appeal. For #1 and #2 (question 4), do I need to reference the FOIA tracking # ? The sample FOIA complaint appeal and Motion for Vaughn Index templates from other websites don't include any FOIA tracking # in their response.


    I think this is all for now. Again, I apologies for so many questions. I'm very grateful for any help you can give me.

    Thank you for your time.

  2. #2
    Join Date
    Oct 2014
    Posts
    7,090

    Default Re: Filing Foia Appeal District Court

    Quote Quoting weedkill3
    View Post

    1. Do I even need to go judicial? Can I just resubmit a new FOIA again to USDA FNS and restart the process?
    The next step is to sue the agency in U.S. District Court. Note that if your client was the actual requester then your client must use an attorney if he needs help. You cannot help him with his lawsuit if you are not a lawyer. And frankly doing the lawsuit himself when he not a lawyer is not a good idea.

    If you were the actual requester, then you may pursue the lawsuit on your own behalf. I would recommend you use an attorney, too. FOIA suits require a good understanding of how the FOIA process works as well as good knowledge of the federal rules of civil procedure and the rules of evidence. There are some specialized things, too, that you find only in FOIA suits. Your questions here suggest you are not at all familar with litigation in federal court or with the details of FOIA proceedings, and that puts you at a a significant disadvantage.

    Of course the documents would be heavily redacted. You asked for documents that likely are evidence in a criminal investigation. Exemption 5 is for privileged communications between or within agencies, and include things that are covered by the attorney-client privilege, work product doctrine, etc. Exemption 7 is the law enforcement exemption.

    What likely would have been better here would have been for your client to submit a Privacy Act request, as he could perhaps obtain some documents that you could not. But even there the agency may assert the privileged communication and law enforcement exemptions. Unless your client is able to show that the documents are not covered by those two exemptions he will lose in court. So if he did a Privacy Act request now, he'd get much the same response as you, especially considering that the agency evidently did not assert Exemption 6.

    And if the documents are indeed part of an ongoing investigation of your client by the agency they are almost certainly covered by those two exemptions.

    Finally, you and your client are taking a risk in proceeding along this route without at least first consulting a criminal defense attorney familiar with federal criminal cases. Your really ought to consult a criminal defense lawyer to ensure that what he or you do in the FOIA matter won't hurt him later if the government prosecutes.


    Quote Quoting weedkill3
    View Post
    2. If I appeal judicially, do I have six years to file with the District Court?
    If you made the request then you have six years from the date you constructively exhausted your administrative remedies to file the complaint in District Court. If your client was the requester, then he must file the complaint within those 6 years.

    Quote Quoting weedkill3
    View Post
    3. During that six years, does USDS FNS have to wait for me to see if we will file a judicial FOIA appeal or are they allowed to continue with working on the case ?
    The FOIA request and appeal has absolutely no impact on the criminal investigation and prosecution. FOIA is simply a way to get copies of federal agency records from the government. It has no other function. Thus, the FOIA request and appeal will not result in halting or slowing down the investigation and any prosecution. Note that if your client is prosecuted he'll be entitled to get ALL the documents except those that are privileged in discovery; he'll get more from discovery than you would get through FOIA.

    Quote Quoting weedkill3
    View Post
    4. If I decide to file a FOIA appeal judicially, this RCFP website suggest I do 1) a short term complaint and/or 2) a Motion for Vaughn Index. Do I need to do both 1 and 2? Can they be filed at the same time? Which takes less time for the government to complete?
    The site suggests a "short form complaint" (which is their term for it, not a legal) if the denial was considered "routine." Bear in mind that the organization that runs that site helps reporters with doing their jobs, including getting information from the government for new stories. That is a very different situation than what your client has. A short complaint is probably not doable in this situation, and given that your client is facing criminal investigation extra care must be taken with that complaint. I would strongly recommend your or your client have a FOIA lawyer represent you/him in this and only after a criminal defense lawyers says that doing it will not harm any future defense he may need to make.

    I cannot say whether a Vaughn index would be useful to your client in litigating the appeal. I would have to see what was requested and what the response was in order to make that determination. Vaughn indexes are mostly needed to help deal with documents that were withheld in the entirety and for which the government has not provided much information about what those documents are about.


    Quote Quoting weedkill3
    View Post
    5. Can I file by mail? USDA FNS HQ is in DC. I'm assuming Wash DC District Court .Who do I address the envelope to? Any particular group within the court?
    Your or your client (depending on who was the requester) has a choice of which district court to file the case in: the district where the the requester resides, the district where the the requester has his or her principal place of business, the district where the government records are located, or the District of Columbia. If he files in any district other than DC your or your client must set out the facts that support the basis for the venue in the complaint. While the complaint may be filed by mail, it would be better to have it hand delivered to the court. If you are not near the court there are services that will do that for you for a fee.

    Quote Quoting weedkill3
    View Post
    6. The US Distrcit Court says filing there cost $505. Dumb question: is this this true for FOIA appeals?
    A FOIA lawsuit is like any other civil lawsuit in federal court with regard to the fees. So yes, the fees are the same.

    Quote Quoting weedkill3
    View Post
    b) If I do 1 and 2 (from Question #4), are they separate fees for each? Who do I make the check out to?
    Ask the court clerk how to make out the check.

    Quote Quoting weedkill3
    View Post
    7. If I do a short [form] complaint. I will also include all the dated documentation USDA sent me. And I will include a prepaid postage return envelope. Anything else I'm missing?
    You do not attach the material the USDA sent you in response to your FOIA request to the complaint you file with the court. You do need to make sure the complaint is properly written and you must ensure that the complaint is properly served on the federal agency.

    Quote Quoting weedkill3
    View Post
    8. If I do file a judicial appeal. For #1 and #2 (question 4), do I need to reference the FOIA tracking # ? The sample FOIA complaint appeal and Motion for Vaughn Index templates from other websites don't include any FOIA tracking # in their response.
    The FOIA tracking numbers are only used by the agency to tract your requeset in house. That tracking number is not at all useful to the court.

    1. Sponsored Links
       

Similar Threads

  1. Appeals: How to Respond to an Appeal from a District Court Judgment
    By rsatya in forum Civil Procedure
    Replies: 2
    Last Post: 09-27-2017, 10:28 AM
  2. Motions: How to File Pre-Hearing Motions in District Court
    By pbello in forum Moving Violations, Parking and Traffic Tickets
    Replies: 3
    Last Post: 10-21-2013, 05:26 PM
  3. Appeals: General Procedures for Appeal to District Court
    By fastline in forum Civil Procedure
    Replies: 1
    Last Post: 07-29-2010, 09:36 AM
  4. Discovery: How Do I File Discovery In Washington State's King County District Court?
    By Gambit23 in forum Moving Violations, Parking and Traffic Tickets
    Replies: 7
    Last Post: 08-14-2009, 07:53 AM
  5. Appeals: Appeal Of District Court Traffic Case In Circuit Court In Virginia
    By SDrive in forum Moving Violations, Parking and Traffic Tickets
    Replies: 4
    Last Post: 12-31-2007, 12:07 PM
 
 
Sponsored Links

Legal Help, Information and Resources