Private/protected/privileged vs public record request FOIA, transparency, accountability.

[HDBTL]

What is the name of your state? UT


Do you guys know of the concept of if you want to claim a record is Private/protected/privileged, then you must treat it that way.
Information kept under lock and key or encrypted with very limited access to key personal vs information kept openly with access to the entire office, placed on websites, etc..
Company can't just scrub their website, shred the documents, and claim its all protected effectively immediately in response to the lawsuit.

Do you guys know what this concept is known as?

My issue is that FOIA request and state public records request are being denied due to claims of Private/protected/privileged information yet at the same time the same information is being sold to data brokers and deep pocket individuals, companies for millions. These data brokers/companies then claim the information they have in acquired is public records.

There is also the question of equal protection under the law. How can the same agency claim its public record for individuals they like ( and pay millions) but its Private/protected/privileged to individuals they don't like ( Who will pay little to nothing) for the record under public records request?

Seem like the record changes from public or private depending on who is making the request and the size of their wallet.

Could this be a challenge to a public record denial?


If you need an example of the type of thing I'm talking about.
"The California DMV Is Making $50M a Year Selling Drivers’ Personal Information"
(link removed).
Its not just this agency, its many other ones as well. This is just 1 example.

You may have seen this in action when applying for a credit card, car loan, maybe trying to reset the password to your login page. The company will ask you security questions based on public record.


Are there legal ground for a challenge of these public records denial for records which are obviously not treated as being Private/protected/privileged as claimed?
Alternatively, should these companies be able to purchased all this so called " public data" from government agencies for million if they actually believe its private to individual public record requestor?

They seem to want it both ways and pick and choose when and who the information is private vs public with.

 

[Taxing Matters]

The government does not have to disclose records to you unless there is a law that compels the government to disclose it. For records held by the federal government, the federal Freedom of Information Act (FOIA) and the federal Privacy Act are the two primary laws that require agencies to disclose records. However, that law also has a number of exceptions where the agency does not have to disclose records or may even be prohibited from disclosing them. Most states also have some kind of open records law, but like the federal government those laws have a number of exceptions that protect certain records from release. In order to get those records your request must meet the requirements of the particular Act that compels disclosure and the agency is allowed to deny release of records (or parts of records) that are protected from release. If you think the agency has improperly claimed an exemption then you can litigate that in court, if you are willing to pay the cost to do that.

The fact that the agency provides those records to someone else under whatever other program allows for that doesn't help you. You are quite correct that the government can pick and choose who gets disclosure and who doesn't. There may very well be good reasons for those choices. But whether good reasons or not, you have to pursue the records under whatever Act is available to you and you are limited to what those Acts allow you to get.

 

[FlyingRon]

This site has a pretty good index of the state "FOIA-like" laws: https://www.nfoic.org/

 

[adjusterjack]

They seem to want it both ways and pick and choose when and who the information is private vs public with.

What, exactly, did you ask for that got denied?

 

[FlyingRon]

Note that in most places FOIA (and this is certainly true federally) doesn't require them to compile information for you, just hand over existing documents. You can't go in with a request of "I want the top ten salaries you're paying out" unless such a document exists.

 

[HDBTL]

What, exactly, did you ask for that got denied?

A single name/address they have on record The same information that they sell for as little as 1 penny to companies like Experian or that your phone(landline) company use to publish in phone books or directory assistance.

When these Data brokers use the information, they claim they are public records they are using.

I think asked for the financials on all the money they made from selling the same information and a list of how many customers purchased this information but they refuse that too. They don't deny doing it but almost seem embarrassed about it. They refuse to provide these records too.

Some government agencies will refuse all record even when people do a public records request on information listed on their website for the general public, they claim that its private. Its like some catchall for everything. I remember seeing congressional hearings about this a few years ago where the congressman was reading a list of rejected FOIA request on things they were claiming privacy, classified, national security yet were printed right on their website for all to see.

I have seen cops try to use HIPPA to stop someone from filming in public because someone was intoxicated.

I know in some States, they were trying to claim that all their communication, memo,etc. were all copyrighted because the government employee created it.

In another case, I asked USPS where they were delivering my mail and they refused to tell me saying it was private.

I FOIA USPS about another issue and they said both in the same letter that 1. There are too many records to process and 2. There are zero records that match the description. So in other words, the request was simultaneously too big and small at the same time.

I know with copyright, I think there is a duty to defend it and if its not defended, it can be lost.
I believe there is a legal principal which states that protected records must be treated as protected and can't be flaunted around like you are giving away candy then claim its protected when you get sued.

I was involved in a lawsuit that a company scrubbed the website of information that hurt their case but when asked to produce those records under discovery, but they refused claim it was like a trade secret and attorney privilege information, etc. The argument against them which won in court was that the information was not treated as a trade secret or protected and was in plain view of the public as well as their entire office. I am summarizing and paraphrasing the situation but that was the basic point. So I know this is a thing but I don't remember was it was called.

Problem is that it takes 2 seconds and no money to reject a FOIA request. It takes years in court and thousands of dollars to get a FOIA record compliance. There is no repercussion or accountability for a government agency or employee who routinely will deny legitimate public records request.

If record is truly private, then how can it be sold to data brokers as public information?

 

[FlyingRon]

They don't have to do research for you, again. You have to be specific in your requests.
You're entirely wrong about copyright on several points, and besides, even if you were right, it has nothing to do with FOIA responsibilities.
Similarly, trade secrets have nothing to do with FOIA either. Indeed if you don't treat a trade secret as a secret, it ceases to have that protection. That doesn't happen with FOIA. If something is protected under the law, even though it's been previously (perhaps erroneously) distributed in the past, doesn't mean it has to remain public. This happens all the time when the government compiles a database and makes it public and then someone challenges whether it should be available or not based on the privacy act or the like.

 

[Taxing Matters]

Some government agencies will refuse all record even when people do a public records request on information listed on their website for the general public, they claim that its private. Its like some catchall for everything.

Under FOIA and many state open record laws, records that an agency has already made publicly available on its web site, in a publication it distributes to the public, etc., are exempt from disclosure because the record is already available to the public and there is no need to burden the agency to release it again under FOIA.

I have seen cops try to use HIPPA to stop someone from filming in public because someone was intoxicated.

Then that is a cop who doesn't have a clue what HIPAA (not HIPPA) does.

I know in some States, they were trying to claim that all their communication, memo,etc. were all copyrighted because the government employee created it.

Copyright is different issue from disclosure of records under open records laws. But understand that state and local governments can legitimately claim copyright protection for the works they create.

In another case, I asked USPS where they were delivering my mail and they refused to tell me saying it was private.

You asked for your own address from the USPS? What is the purpose for that? You already know that. That sounds like making requests just to burden the agency to see what you get.

I FOIA USPS about another issue and they said both in the same letter that 1. There are too many records to process and 2. There are zero records that match the description. So in other words, the request was simultaneously too big and small at the same time.

No. The agency is saying that the request is too big (and likely too vague) and given the request you made it could not identify anything responsive to disclose. A lot of people who make FOIA requests have no idea how to write them to get the records they are looking for. Instead of broad, vague requests for things the agency may or may not have, the best FOIA requests are those that are pretty specific about the records that are sought and the requester has reason to know the records actually exist.

I know with copyright, I think there is a duty to defend it and if its not defended, it can be lost.

Not so. And again, copyright is not about privacy. Copyright is about the right to control who may distribute the work that is created. The TV show Game of Thrones was immensely popular; the shows certainly weren't private. Millions of people saw the show. But the episodes are still protected by copyright, and thus the show producers control who may distribute the episodes, who may air them, who may make copies of them, etc. So if you make a copy of an episode without permission, you violate the copyright. Again, it has nothing to do with privacy or secrecy.

I believe there is a legal principal which states that protected records must be treated as protected and can't be flaunted around like you are giving away candy then claim its protected when you get sued.

If you are claiming trade secret protection, that's true. But government disclosure under open records acts are governed by a different set of principles. The records you want might be subject to disclosure to some persons but not to you. There is no rule that says either a record must be kept completely secret or it must be made available to everyone. The basic rule is that unless the law says otherwise, an agency may, but doesn't have to, release the records it has upon request. For some records, though, the law will set out what records cannot be released to you and what records the agency must disclose to you. FOIA and other open record acts are the latter — they specify which records the agency must give you. But those laws are riddled with exemptions of records the agency does not have to release. Thus, as I said in my earlier reply, if you want a record from an agency you have to find an FOIA/open record or other law that requires the agency to give you that record and then follow the rules in that law for how to get it. If you don't do that, the agency can properly deny you the record even if it has given that same record to someone else.

I was involved in a lawsuit that a company scrubbed the website of information that hurt their case but when asked to produce those records under discovery, but they refused claim it was like a trade secret and attorney privilege information, etc. The argument against them which won in court was that the information was not treated as a trade secret or protected and was in plain view of the public as well as their entire office. I am summarizing and paraphrasing the situation but that was the basic point. So I know this is a thing but I don't remember was it was called.

Yes, again it's a thing in trade secret protection. Government record disclosures are not trade secret protection issues.

 

[HDBTL]

If something is protected under the law, even though it's been previously (perhaps erroneously) distributed in the past, doesn't mean it has to remain public.

1. Defend Your Trademark Or You Could Lose It
(Link removed)

2. trade secrets are except from FOIA.


In the case of a government whistle blower leaking classified information, yes. I have heard of senators refusing to talk about something citing " its classified" when the same information was on the news nonstop. I think maybe the Edward Snowden, NSA spying program was like this.

However that is not what I'm referring to. I'm talking about when refuse to release of name of the person who sang the national anthem at government employee baseball game and redacted some general nick name which appear on documents when the same information was made available on their website however it was refused on a FOIA question.

It was used in the congressional hearing showing how government agencies are not complying with FOIA and are dealing in bad faith preventing public record from being provided.

Also, I am not asking for new records to be created. I already know you can't have them create a new record. That is not even an issue here. However, they have already created a new record or list of information to be inputted into massive private data broker database and used for all sorts of credit check, debt collection, and private industry.

I know this because I have seen this first hand as my company was a customer of experian and our company had a link tied into their system allowing detail records to be search on whoever we wanted. It was all done under the patriot act " know your customer" theory.

It was advertised as being able to verify using public information.

So Experian admit its public information however the same government agency that provided this information claims its private information.

So either the government agency providing the information to Experian was wrong because it was private record or not providing it to the public record request is wrong because its not really private.

Its like if you give a cop a fake name then later when you are called for providing a fake name, you claim legally you are allowed to change your name so you changed it the minute the cop asked for it then decided to revert back after the cop left .

I have seen some government employees literally call 911 on individuals showing up to do a public records request in person because some of them don't know the law on public records and assumed someone asking for records is an potentiality attack on them.

FOIA is a 4 letter word to many government employees both figuratively and literally. They don't like it to begin with and no repercussions when they don't comply with it.

 

[Taxing Matters]

So Experian admit its public information however the same government agency that provided this information claims its private information.

A lot of what companies like Experian get are truly public records, i.e. records freely open to the public like deed, mortgage, and lien records. Anyone can go get those records the same way Experian does: going to where the records are located and copying them. If you make a FOIA or open record request for that stuff you'll get denied. But the reason is not because the record is private. It's because the record is already available to you by another method.

So either the government agency providing the information to Experian was wrong because it was private record or not providing it to the public record request is wrong because its not really private.

You're not getting it. A record can be made available to someone else but not you. A record can be made available through one method but not another. It is not a case where the record has to be either completely secret and disclosed to no one on the one hand or disclosed to everyone on the other. So when you want to compel release of a record, you have to find a law that requires that the agency give that record to YOU. Forget about who else might be getting that record. That's not what is going to count if you litigate it. The court is going to want to see what requires the agency to give that record to YOU.

FOIA is a 4 letter word to many government employees both figuratively and literally. They don't like it to begin with and no repercussions when they don't comply with it.

You are correct that by and large agencies don't like FOIA/open record laws. Which is why when you seek records from them you want to be as precise and targeted with your request as possible and be sure that the law actually requires the disclosure you seek. There can be consequences for an agency not disclosing records it must disclose, but that will vary from one jurisdiction to the next.

 

[FlyingRon]

1. Defend Your Trademark Or You Could Lose It
(link removed)

Despite you making it in a giant font, it doesn't change the fact you are wrong. TRADEMARK is distinct from COPYRIGHT (which is what you said). Further, "duty to defend" is the WRONG term even for trademark.
'

2. trade secrets are except from FOIA.

I assume you mean exempt. And nothing in your post alleges that they were using the trade secret protection. The government doesn't have "trade secrets" of their own. The FOIA exemption says they don't have to (rightfully) give up other people's trade secrets that they are a legitimate party to.

 

[HDBTL]

You're not getting it. A record can be made available to someone else but not you. A record can be made available through one method but not another. It is not a case where the record has to be either completely secret and disclosed to no one on the one hand or disclosed to everyone on the other. So when you want to compel release of a record, you have to find a law that requires that the agency give that record to YOU. Forget about who else might be getting that record. That's not what is going to count if you litigate it. The court is going to want to see what requires the agency to give that record to YOU.

Let me get this straight. A white man wearing a suit and tie and a black man wearing with baggy jeans, sideways hat(both US citizens and members of the general public) can walk into a government office with an identical public records request.

The government agency can give the white man the records and deny that same records request to the black man. Based on appearing alone and you are saying this is legal?

What about the equal protection clause? What about the fact that both men are US citizens, tax payers and members of the general public. This is playing favorites with the records.

I must be misunderstanding what you are saying because public records are suppose to be available to the public.
Where does this whole " are you worthy" thing enter in the equation?

There is no law which is going to demand the release of records and mention me by name. However as a member of the general public, all public record should be available.

As far as government employees having incrimination emails and memo, notes,etc.. not complying because its copyrighted work. I don't think this argument held up in court but I could be wrong.

The government employee may create these documents but they are doing so while being paid by the tax payer. Why would that work not be consider public documents if paid for by the public?

If an Apple engineer creates a feature in the Iphone then leaves the company. That work is property of Apple not the Individual who created it.

On the issue of defending your company name. I linked a lawfirm which explain it.
"Marketing, branding, and protecting your intellectual property doesn’t end with registration. Failure to take necessary steps to prevent infringement of that mark by others could result in your losing your exclusive right to use of the mark – the essence of its value. "


On the subject of the USPS FOIA request being denied on where my own mail was being delivered. This was not a frivolous request that was denied for stupidity. My mail was actually redirected without my authorization. I wanted to know the location that my mail was delivered and they claim it violated I guess my own privacy or the privacy of the criminal doing it.

If response to " If you make a FOIA or open record request for that stuff you'll get denied. But the reason is not because the record is private. It's because the record is already available to you by another method "

Experian is claiming the record they are using is public, the agency admit they provided the record to experian, however they are claiming the record is private and will not provide for public records request.

Therefore the record is somehow public for Experian but private for me(the general public) from the same department and same person.

I am requesting the record as a member of the public. The difference is that the department makes millions a year from big data like experian and nothing from the general public.

 

[Taxing Matters]

Let me get this straight. A white man wearing a suit and tie and a black man wearing with baggy jeans, sideways hat(both US citizens and members of the general public) can walk into a government office with an identical public records request.

The government agency can give the white man the records and deny that same records request to the black man. Based on appearing alone and you are saying this is legal?

No, I'm not. In that circumstance, the government is making the decision based solely on race. That would be a violation of the Constitution. However, there are a lot of reasons other than race that the government could decide to give a record to one person and not another without violating the constitution.

What about the equal protection clause?

What about it? Under the equal protection clause the government is to treated similarly situated persons the same. Where the reason for the differing treatment is something other than race, religion, or sex the government normally only has to have a rational basis for the distinction being made. Let me give you one example of a real situation I had while a lawyer for the IRS. A person sued the IRS for a refund and made a request for a particular record as a discovery request. Under the discovery rules, the person was entitled to the records sought and the agency provided them. Another person made a request for the same record, but the FOIA request was properly denied because under the FOIA rules, an exemption applied protecting the records. It didn't matter that the records had already been provided in discovery to someone else and that other person already knew the information in those records. In that sense, it wasn't "secret" information. But because the rules for FOIA didn't allow for the release, the FOIA request was properly denied. The discovery rules and FOIA rules serve two different purposes, and thus there is a rational basis for the different treatment in who gets access to that record. Same record — one person got it, another didn't. Perfectly legal.

I must be misunderstanding what you are saying because public records are suppose to be available to the public.

Public records are those that the agency makes freely available to the public. Think deed records kept at the county clerk's office. Anyone can go in there and look at them. A lot of agency records are NOT public records. They may be records that are subject to disclosure under some law, like FOIA, the Privacy Act, or whatever, but that does not make them public records.

As far as government employees having incrimination emails and memo, notes,etc.. not complying because its copyrighted work. I don't think this argument held up in court but I could be wrong.

It isn't copyright law that would bar disclosure of the record to you. Copyright law could, however, affect what you could do with the record once you got it.

If an Apple engineer creates a feature in the Iphone then leaves the company. That work is property of Apple not the Individual who created it.

I'm not seeing how this applies at all to the discussion of release of agency records.

On the issue of defending your company name. I linked a lawfirm which explain it.
"Marketing, branding, and protecting your intellectual property doesn’t end with registration. Failure to take necessary steps to prevent infringement of that mark by others could result in your losing your exclusive right to use of the mark – the essence of its value. "

That's a feature of trademark law. FOIA and agency disclosure of records do not involve the same principles as trademark law, or trade secret law, either. I understand why you are tempted to want to use them to apply to records disclosure, but it does not work because the law regarding government records is substantially different. You're going to need to understand the particular rules and principles that apply to FOIA/open records acts and focus on that. Ignore the legal concepts for other areas of law; those will lead you astray.

On the subject of the USPS FOIA request being denied on where my own mail was being delivered. This was not a frivolous request that was denied for stupidity. My mail was actually redirected without my authorization. I wanted to know the location that my mail was delivered and they claim it violated I guess my own privacy or the privacy of the criminal doing it.

Did you make only a FOIA request, or did you make a Privacy Act request, too?

Experian is claiming the record they are using is public, the agency admit they provided the record to experian, however they are claiming the record is private and will not provide for public records request.

What exact records is Experian getting as a "public record" and what was the agency response when you asked for that exact record? If you are commenting just on a vague idea that Experian is getting public records but you don't know exactly which records are involved then you don't really know that you are being treated differently than Experian is.

The difference is that the department makes millions a year from big data like experian and nothing from the general public.

You don't have to like it, but money can be one rational basis for the government to make a distinction between two persons or entities.