Getting Info from the Government: FOIA 101

Suppose your grandfather or great-grandfather worked for the federal government or for a government contractor, building Hoover Dam. Perhaps he kept a journal that stayed with the government for some reason when the project was completed. Or may be your relative was in the Far North as an early operator of the DEW Line. You might want to learn more about that than just what's in the history books. Perhaps your family's homestead was taken by the government to build a defense plant. Now you want to know what the place was like and to learn about the circumstances of the taking. Or, perhaps most interesting of all, maybe your ancestor was under surveillance by the FBI or passed information about his former homeland to the CIA. Wouldn't that be something to know about?!

Information of the sort described above can be had from the government if you know the secret word that opens government vaults and and filing cabinets [with some exceptions] to ordinary citizens. And I'll bet you do know the word, but maybe not how it works.

The "word" is "FOIA" (foy-yuh), the acronym for Freedom of Information Act.

Most people have heard of FOIA, but many do not know how it works or the type of information available under it. Many genealogists have used FOIA (even if they didn't realize it) to get Social Security applications and passport information from the government.

Basically, FOIA requires federal agencies to make available to any person upon request records held by those agencies. A FOIA request should be in writing and must "reasonably describe" the records being sought. The request must be made in accordance with the particular agency's rules and procedures which can be found on each agency's website. The rules state such things as where to send the request and what the fees are (more about that later).

What types of information might be obtained under FOIA? "Agency records" include paper records, but also electronic records, photographs, sound recordings, maps, videos, etc.

There are exceptions to the obligation of a federal agency to disclose information. These include (1) national security information; (2) internal agency personnel rules; (3) information exempted by other laws; (4) trade secrets or confidential business information obtained by the government from another party; (5) internal documents exempt from disclosure in litigation; (6) personnel or medical files the disclosure of which would constitute a clearly unwarranted invasion of privacy; (7) certain law enforcement information; (8) certain banking regulatory information; and (9) geological and geophysical information and data.

The exemptions can become quite complex and many have the subject of litigation before the Supreme Court. However, don't let that stop you from making your genealogy-related request. The agency has to show that an exemption applies.

An agency may charge fees for FOIA requests. There are fee categories set out in the law. The most favorable fee categories are for educational institutions, non-commercial scientific organizations, and the news media. Generally, these entities must only pay the costs of duplication, but are entitled to the first 100 pages free. Other requesters generally may be required to pay the costs of search and review in addition to duplication.

There's no obvious fee category that covers genealogists, but that may depend upon what you intend to do with the material. In any event, there's a provision for a waiver of fees, no matter who the requester is. A waiver may granted if the material requested "is likely to contribute significantly to public understanding of the operations or activities of government and is not primarily in the commercial interest of the requester." As a genealogical requester, I would probably try to make this case.

An agency is supposed to make records "promptly available" after a request. Under the law, an agency has twenty days to determine if it will comply with the request. If it will comply, the agency must immediately notify the requester and then promptly make the records available. If the agency will not comply, it must notify the requester of a right to appeal--the appeal must be filed within 20 days of notification. The head of the agency then usually has ten days to decide the appeal.

In reality, most agencies have a backlog of FOIA requests and processing takes considerably longer than the deadlines. You have a right to go to court if the agency misses its deadlines, but I imagine that as genealogists, we've gotten used to waiting for public records.

Although the FOIA procedures can seem cumbersome, in most cases they are not. There are numerous FOIA websites that describe the procedures and give examples. I would advise, however, to check if the records you're seeking are available without a FOIA request. For example, many records have been transferred to the National Archives and are available from them. Other records are now posted on agency websites.

FOIA applies only to federal agencies. Most states, however, have similar laws regarding disclosure of public records.

So if you want the map of the wildlife refuge that now occupies your grandmother's homestead or a copy of the tape of your uncle's interrogation by the FBI, use the magic word, FOIA.

The foregoing is for educational purposes only and does not constitute legal advice. If you have a problem of a legal nature, seek legal counsel.

New County Clerk in Milam,Texas

Laverne Soefje, county clerk for more than sixteen years in Milam County, Texas, has retired. Under her leadership, the office was friendly and efficient on all requests including genealogy issues. Her former chief deputy, Barbara Vansa, has been elected to replace her.

According to the Cameron Herald,

Soefje and her husband of almost 40 years, Harold, have an exciting retirement ahead of them. They will begin in April as camp hosts at state parks across Texas. They will work a month at a time with two days off each week. Their first park duties will be at Brazos Bend near Needville. In June, they will be at the Guadalupe River State Park north of New Braunfels. [Link]

Best of luck in retirement to a fine public servant!

Colorado Gets Stupid

I like Colorado. I lived there for eight years and have many friends there. And I have praised both their state archives as well as their easily accessible marriage and divorce records. But now Colorado has gone stupid. The State Department of Public Health and Environment has taken down their site that used to list marriages and divorces in Colorado. They've imposed a strict set of identification rules in order to get access to marriage and divorce records. In this respect, Colorado has gone further than any other state concerned about alleged identity theft. While some states have restricted access to birth records, virtually no other state has so thoroughly shut down access to marriage and divorce records because of identity theft concerns.

There is no evidence that anyone has ever had their identity stolen through the use of state marriage or divorce records. So for a draconian response to a nonexistent problem, I say Colorado has gone stupid.

This is of personal interest to me for two reasons: (1) I have family ties in Colorado and tracing marriages and divorces there has been important to my research, but (2) I was married in Colorado and I've never had the least concern about the fact that that information was publicly available! In fact, here's the transcript of what used to be available on Colorado's marriage records website about me:

Colorado Marriage Detail

Groom Groom Information MANSON, HAROLD C County EL PASO
Bride Bride Information PENNY, MARGARETT A Date 03/21/1987

Disclaimer: Official marriage records are located in the Colorado County Clerk and Recorder office where the license was purchased. If you detect an error in a record on the Web site, please contact the Clerk and Recorder to ensure that the official record contains the correct information.

http://www.sctc.state.co.us/marriages/default.aspx#this [25 Feb 2006]

There are good public policy reasons that we require witnesses at marriages and that we [used to] make public the names of people in the community who got married. There will bizarre unintended consequences from Colorado's decision in this issue, I can assure you.

We need to address identity theft, but not by hiding our identities everywhere. That in fact makes it easier, not harder, for the bad people to get away with their crimes.

Thanks to Chris for the tip.

Google Public Records?

From Google's press office:

Google and Four US States Improve Public Access to Government Websites

Mountain View, Calif. - April 30, 2007 - Google Inc. today announced partnerships with the states of Arizona, California, Utah and Virginia to make it easier to search for hard-to-find public information on state government websites.

These partnerships developed as both Google and officials with the four state governments recognized that the public is increasingly turning to search engines like Google to access government services, but that a significant share of the information on state agency websites is not included in its index of information sources on the web. As a result, many online government services can be difficult for the public to find.

This is good news for genealogists and family history researchers. I've long advocated for more and easier access to information and we've highlighted those government offices that are the most advanced in providing access. Partnering with the folks who re-invented online search is a smart move.

*Full disclosure: My faculty colleague at Pacific McGeorge School of Law, Clark Kelso, is California's Chief Information Officer and was involved in this deal. I haven't talked to Clark about this matter.

Illinois State Archives Databases

I've been reminded that I really like the Illinois State Archives Databases on that state's Secretary of State website. There are a few things that could be better, but overall, this is a useful resource.

There are the state's vital records databases, of course. Unfortunately, unlike neighboring Missouri, the Illinois death index (1916-1950) has no retrievable images. On the other hand, also unlike Missouri, Illinois has a rather extensive pre-1916 death database and a statewide marriage database for the years 1763-1900.There are also databases of Illinois veterans for several wars, but not for the World Wars. Again, no retrievable images, but useful nonetheless.

Most unusually for state archives, Illinois has a database of servitude and emancipation records as well. It's hard to tell how comprehensive this really is, but the fact that its exists at all is a boon for researchers.

Since I last visited, a "Global Database Search" feature has been added. You can search on surnames or full names. I was slightly disappointed that the search results consist of only links to databases where the names are found, which you must search all over again. Oh, well . . . better than nothing!

I do appreciate that Illinois is constantly upgrading its state archives website. They also make it easy to order copies from several Regional Archives Depositories, which are universities around the state. These Depositories also each contain unique records from counties within their areas.

I came to the Illinois sites after not having been here for awhile because a recent e-mail correspondent had sent me some information about the Micheau and Penny familes of southern Illinois. As I searched through the databases, I came across a marriage record for George and (Mary) Emma Micheau. They were married on September 4, 1872, I'd been unable to find that information in any other place. And that was just the impetus I needed to move out of a research doldrums I'd been in the last few days!

Some Resources

Nevada marriage and divorce records are now available on Ancestry.com. These resources can be useful to those researching in just about any state. That's because when many states had restrictive laws about marriage and divorce (especially divorce), Nevada traditionally has had rather liberal laws on these matters. Thus, those who could afford to do so would sometimes head for Las Vegas or Reno for a "quickie" divorce. And folks who wanted something a little different in a wedding ceremony find their way to the unique Nevada wedding chapels.

Not surprisingly, Californians tend to predominate. There are more than 3,800,000 Californians in the Nevada Marriage Index from 1956 to 2005. Anyone doing California research should treat the Nevada resources as if they were California resources. I was looking for California marriages I was certain had taken place and couldn't find them. Then I went to the Nevada index and there they were! Unfortunately, there are no images available for viewing or downloading.

Getting Nevada records means doing it the hard way: writing county clerks and asking for them; or sending money to Vitalchek.

Clay County, Missouri

As you know, I do a lot of research in Missouri sources. So I'm embarrassed to say that it had escaped my notice that the Clay County Recorder of Deeds no has a fairly decent web site. Information about marriages, deaths, marriages can be found there. Again, however, there areimages to download.

Privacy, Public Records, and Genealogy

The beginning of a new year typically brings the effective date of new laws in many states. In the current era, many of these laws are intended to address privacy, identity theft, and security issues. Nobody will be surprised that on such important issues, legislators sometimes overreact. On the other hand, there are sometimes unintended consequences of well-intended laws.

This year, several states have enacted laws concerning the management of public records that contain Social Security Account Numbers (SSAN). I've reviewed a few of these laws and generally I think they're on the right track. For example, in Arkansas, it's now illegal to publicly post or display an individual's SSAN or to require a person to transmit his or her SSAN over the Internet without encryption. This is a sensible approach to identity theft prevention (although the potential downside in the near term for public agencies and genealogical researchers is how to deal with existing public records that contain SSANs). Hawaii has a similar law that became effective on Monday. In other states, like Wisconsin, recently enacted laws require businesses and governments to notify consumers and citizens when there has been a breach of private data that creates a material risk of identity theft. That, too, is a sensible approach to a vexing problem.

An approach that has little to commend itself is the restriction of access to birth, marriage, and death records. For nearly 400 years in America, these records have been regarded as open to the public. In the 17th century, these records were maintained by churches and became state records near the end of the nineteenth century. The theory was that the community had a right, an obligation, and a need to know who was born (when and to whom), who was married (again, when and to whom), and who died (when, how, and where). In fact, it is apparent that the community's access to this information is important to building and maintaining a sense of community and a sense of common security.

Individual privacy is cited along with crime prevention as justification for restricting access to vital records. But each birth, marriage, and death has significant public implications. And these days, there are very few cases of identity theft by birth certificate for the reason that there are simpler ways to do it.

Now I can understand why states might not want to make actual, official documents available on an unrestricted basis. California watermarks vital records as "Unofficial Copy," which renders the document valueless for most commercial or official purposes. This makes sense. But every state should make available, at a minimum, a register of vital information containing complete names, dates, and counties. There simply is no reason not to do this.

On the other hand, there usually is no reason to include a SSAN in the public portion of most records. Overuse of the SSAN by government and business is the true privacy and security threat. We all can improve our privacy and security by safeguarding important personal information such as our SSAN.

Some states have found the right balance. And from time to time, I'll single out the rational approaches for mention here.