Freedom of Information

If you FOIA sometime, you just might find you get what you need

Guest Columnist: Geoff Embler (geoff@concentricpa.com)

Peculiar Interests

A life in opposition research can lead to unusual interests and hobbies. Among those for me is a fascination with public records, particularly those obtained through public records requests. 

The laws that apply to those requests go by many names: the Freedom of Information Act (FOIA), California's Public Records Act (PRA), New York's Freedom of Information Law (FOIL), the Minnesota Government Data Practices Act, and so on. The acronyms for these laws are words thrown about daily in research shops. 

They present a fun (at least to me) challenge to get your hands on what could be very useful and perhaps damning information. Each law has its quirks, processes, and deadlines. Some jurisdictions have laws that are very favorable to the requestor. Others put up barriers with drawn-out response deadlines and expensive document production fees.

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A Very Particular Set of Skills

It often feels like most government agencies don't want to be bothered by your request and don't want to cough up the goods. But that makes an opposition researcher get salty and wish to channel ultimate meme dad Bryan Mills (Liam Neeson) from the 100% realistic 2008 film Taken:

If you are looking for ransom, I can tell you I don't have money. But what I do have are a very particular set of skills, skills I have acquired over a very long career, skills that make me a nightmare for people like you.

In 2013, the U.S. Supreme Court made state-level public records requests even more difficult by allowing states to exclude requests filed by nonresidents. Sometimes, you even have to file a lawsuit to get what you want, as the Democratic Senatorial Campaign Committee did in 2023 when it tried to obtain West Virginia Gov. Jim Justice's (R) official schedule when he became a Senate candidate. 

On The Record

Public records requests are themselves public records. In 2016, E&E News used government agency records request logs to track the progress of public records requests (or lack thereof) made by Democratic opposition researchers looking for records related to then-candidate Donald Trump:

Democratic groups were slow to begin investigating the environment and energy record of Republican presidential front-runner Donald Trump, according to an E&E Daily analysis of federal open records requests. The delay, records suggest, could make it harder for Democrats to effectively criticize the environmental record and actions of Trump and his various businesses.

More Than You Bargained For

Sometimes, a requestor gets information they weren't supposed to get. In 2018, the Republican opposition research group America Rising received an unredacted copy of now-Rep. Abigail Spanberger's (D-VA) security clearance questionnaire from the U.S. Postal Service through a FOIA request. CNN reported that the document included sensitive personal information:

The questionnaire, which the firm acquired through a Freedom of Information Act request, contained highly personal information such as Spanberger's social security number and medical information.

The USPS said that the release of the document with personal information was due to "human error."

In 2023, the U.S. Air Force said it mistakenly released the military service records of Republican congressional candidates to a Democratic opposition research firm:

The Air Force has notified lawmakers that it improperly released the military records of a total of seven GOP congressional candidates to a Democratic-aligned research firm during the 2022 campaign cycle.

The Air Force audited records disclosures after a 2022 Politico story on Indiana congressional candidate Jennifer-Ruth Green's service record. The dispute over the records' release appeared to center on the fact that the requestor stated that the purpose of the request pertained to "benefits" and "employment":

The military branch launched its internal audit of records disclosures by its personnel center after POLITICO reported on Green's records in October. POLITICO was told by the person who gave it Green's military records that they were obtained through a public records request. POLITICO reviewed the request for the records made by a third party, which sought a "publicly releasable/redacted copy of OMPF [Official Military Personnel File] per Freedom of Information Act statutes." The requester identified the purpose of the request as relating to "benefits," "employment" and "other."

Redacted and publicly releasable versions of any veteran's service record are subject to FOIA requests, and the standard form used to request them states that explaining the purpose of the request is "voluntary." 

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Opposition Research In The News …

The New York Post's Victoria Churchill reported that in 2021, Minnesota U.S. Senate candidate and former NBA player Royce White (R) shared footage on his Instagram account of late Libyan dictator Moammar Khadafy "equating the Vatican with the Taliban, calling it 'scary accurate.'" 

In a blow to opposition researchers everywhere, the Associated Press reported that X (formerly Twitter) made "likes" on posts private. Likes have been a fruitful source of opposition research hits. For example, CNN reported last week that Sen. J.D. Vance (R-OH), a presumptive vice presidential candidate, "liked tweets in 2016 and 2017 that harshly criticized Trump and his policies — including one speculating that Vance could serve in former Democratic presidential candidate Hillary Clinton's administration."

Jessica Pressler reported in New York magazine's Vulture profile of The Real Housewives executive producer Andy Cohen that a former New York Housewife said the show's franchise "went from silly humor about middle-aged women getting drunk" to the housewives "investigating and doing opposition research" on each other.