FOIA or subpoena for a county sheriff's department?

Question

Let's say a county law enforcement officer, such as a sheriff's deputy, says to Jeff "we know a lot about you."

How would Jeff go about finding out what the sheriff's department "knows" about them? Suppose we assume Jeff's name is in emails, phone logs or other notes or documents in the sheriff department - what is needed to get copies of any documents about the individual or with their name?

Would Jeff file a Freedom of Information Act request? Or would a lawsuit and subpoena be necessary because it is a law enforcement department and government entity?

Answer 1

Because you have not indicated that there is any litigation involving him, Jeff cannot subpoena this information. If Jeff is charged with a crime or is a party to a lawsuit, that person may be able to issue a subpoena for those records.

Because the Freedom of Information Act applies only to federal agencies, it does nothing to tell us what records are or are not available to Jeff.

Jeff's most straightforward path to this information is instead through a Public Records Act request under Mont. Code Ann. §2-6-1001 and Article II, § 9 of the Montana Constitution.

Depending on the source of the sheriff's information, records about Jeff may be presumptively available or presumptively unavailable. In most cases, Jeff's rights to them are going to be analyzed using a balancing test that weighs his right to know what the government is doing against other interests, such as the public's interest in the integrity of criminal investigations or the privacy rights of other people identified in those records.

So if Jeff sent the sheriff an e-mail confessing to cheating on a first-grade math test 40 years ago, there's probably not much to outweigh his interests in access to that information. But if an undercover officer has infiltrated Jeff's sleeper terrorist cell, Jeff probably won't be able to get copies of the mole's notes about him.

There are also some states the provide the public with the right to access information about themselves held in government databases. If Montana has such a statute, that could potentially also provide Jeff with the right to access some information about him.

Answer 2

Neither

• A Subpoena requires that you have a lawsuit against some party, that the material you request from the other or a third party is material, and that material is not protected or privileged.
• FOIA isn't applicable against non-federal agencies. Among law enforcement, it only covers federal agencies such as the FBI. Sheriff offices are not covered under it.
• Even against a federal agency, FOIA specifically excludes most material during an ongoing investigation, until you are officially charged.

Congress has provided special protection in the FOIA for three narrow categories of law enforcement and national security records. The provisions protecting those records are known as “exclusions.” The first exclusion protects the existence of an ongoing criminal law enforcement investigation when the subject of the investigation is unaware that it is pending and disclosure could reasonably be expected to interfere with enforcement proceedings. The second exclusion is limited to criminal law enforcement agencies and protects the existence of informant records when the informant’s status has not been officially confirmed. The third exclusion is limited to the Federal Bureau of Investigation and protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified. Records falling within an exclusion are not subject to the requirements of the FOIA. So, when an office or agency responds to your request, its response will encompass those records that are subject to the FOIA.

This covers even a dormant and halted investigation. And can even cover giving any information about evidence until a crime is charged under FOIA Section 30:

30 –(1) Information held by a public authority is exempt information if it has at any time been held by the authority for the purpose of – (c) any criminal proceedings which the authority has the power to conduct.

Only once a person is charged, then Rule 16 strikes and there is a duty to disclose any and all material to the defendant. This disclosure is not by the sheriff, but the State Attorney, and only to the extent as it is dictated in rule 16. Information that is irrelevant to the case can't be disclosed.

In a civil suit, Rule 26 is relevant, forcing disclosure to the other party.