Jeff Farrell: Frustration follows FOIA request

Mar. 08, 2014 @ 11:37 PM

A little more than a year ago, I went to a Society for Professional Journalists seminar on open records laws. The first insight on the federal Freedom of Information Act was, “It’s broken.”

Sadly, that’s been my experience, and my most recent encounter isn’t changing my perception.

Last July 19, I emailed a FOIA request to the U.S. Office of Special Counsel. We were asking for copies of letters sent to Sheriff Ron Seals and to former Sevier County resident John Meyers detailing the OSC’s findings after Meyers complained that Seals violated the Hatch Act — the federal guidelines for election activities by public officials.

We’d been emailed a photograph of a letter sent to Meyers. It indicated the OSC found no evidence to back up Meyers’s most serious complaint about the sheriff — that Seals had paid for some votes by giving residents gravel from the county. But it did discover some minor violations — he had put campaign materials in the lobby of the sheriff’s department headquarters.

The OSC determined that warranted a warning, but no additional action.

The problem I had with the initial email was that it didn’t come directly from Meyers. We couldn’t initially reach him, so to verify the letter was authentic I sent the FOIA request to the OSC, which handles Hatch Act complaints.

Eventually, another news outlet ran a story about the letter. If they’d gotten verification through the OSC, they didn’t mention it. They also were unable to reach Meyers, and Seals didn’t return their calls.

But once the story was out, Seals provided a copy of the letter he’d received. The sheriff hadn’t avoided me or covered anything up; I hadn’t asked him about the matter directly because I wanted to verify the OSC had actually sent the letter before approaching him. We found Meyers as well, so we were able to have comments from both parties eventually.

Meanwhile, the FOIA request remained in bureaucratic limbo. I moved on to other stories, and the matter was forgotten — until Thursday. That’s 230 days after the request was filed.

And the answer I got was a lesson in absurdity:

“Without written consent, proof of death, official acknowledgment of an investigation, or an overriding public interest, confirming or denying the existence of law enforcement records concerning an individual could reasonably be expected to constitute an unwarranted invasion of personal privacy. Thus, OSC must decline to confirm or deny whether the requested records exist.”

Apparently, then, a letter from a federal office telling a local official that he violated the Hatch Act isn’t a matter of overriding public interest. I’m not sure, knowing that, what constitutes “overriding public interest.”

From the perspective of local residents, I think there’s an “overriding public interest” in knowing when local officials are found in even minor violations of the law, and when they’re exonerated in claims of bigger violations.

I also find the claim that the letter was a “law enforcement record” a bit dubious. Are all letters detailing the results of an investigation covered? It appears so. The investigation was concluded, and releasing a letter that acknowledged as much wasn’t going to damage it.

We’re appealing the decision, but the damage has been done. We’ve been told that a letter to a public official detailing the results of an investigation, and a decision not to prosecute a violation of the Hatch Act, are not considered public records. We’ve seen that it can take more than 200 days just to get that acknowledgment.

For now, it joins a growing list of requests for information by The Mountain Press that have been denied — from the accident report on a fatal wreck in the park, to several civil rights investigations where sources familiar with the cases have told us the investigations are completed but where the Department of Justice refuses to even confirm the conclusion of the investigation, much less release its findings.

I believe people deserve a right to privacy. But it’s distressing when one of the the main times our federal government seems to acknowledge it is as a method to avoid giving out the results of investigations we already know have happened.