We’ve been building toward a doctrine for exposing and eliminating misconduct by local government officials, and one important tool in that doctrine is the open records request. Think of this tool as a recon element. Like a recon element, this tool can be used to alert you to unexpected behavior in general, or to focus like a laser beam on a specific line of inquiry. And, like a recon element, a records request is not the primary effort, either in defense or offense, but gathers information so that you can marshal your other legal, civil and public affairs efforts for maximum and overwhelming impact at a time and place of your choosing.
In a previous Leech City article, we described the Georgia open records law in detail, and noted that most other states will have similar “sunshine” laws in place. In this article, we show an actual, current records request, and break down the essential elements so that your own requests can have the maximum impact. We’ll write a followup article on the response we receive from this request, which will be an interesting exercise to see unfolding live. As always with any material on this site, I am not an attorney and nothing you read here is legal advice, merely an exploration of what we have done, why, and the results obtained. You may wish to consult an attorney in your area for issues specific to your particular state.
The request we will examine here is dated yesterday, the 23rd of January, 2017, and sent by certified mail today, the 24th. You can read the entire request by downloading the PDF. As shown in the PDF, the subject of this request is any grants received by the city in the past 20 years. We’ll analyze why the information sought is important to our particular situation in a future article, but in this article we want to focus on the format of the letter more so than this specific issue.
As shown in the PDF, this request has several elements common to all of our requests:
• Generic letter format
• Specifically addressed official
• Narrative overview
• Specific information requested
• Means of response
• Legal reminder
Let’s break each of these down in detail so that we can see the patterns emerge.
Generic letter format
Each of our request letters use a generic, dated English-class correspondence template. As you will recall from our Leech City overview article, a written request carries a force of law, including specific sanctions for non-compliance, that a verbal request does not.
Specifically addressed official
This letter is directed at a specific person. In general, our city requests will go to either the mayor or the clerk, depending on the issue at hand, although in some cases other officials will be the target of the request. In this example, a request for historical data on grants is reasonably addressed to the current clerk. You’ll see why we took this specific approach in this case in a future article.
You may recall that the Georgia open records law authorizes an agency to appoint an open records officer. In such cases, you will want to direct your requests to that official. Manassas has no known official in this capacity, so we target our requests to specific officials on a case-by-case basis.
Officials will often want to dodge the essential and often incriminating information you are seeking. The contortions that public officials can apply to evade being nailed on some issue can be surprising, and will look in your mind’s eye like a Matrix movie character dodging your request bullets. Fortunately, some of their contortions will rise to the level of false official statements, which can lead to separate prosecution.
You will want to draft your narrative in such a way as to limit the contortions which can be rationalized later as good faith excuses. Your narrative also can provide background information to inform the official about the context in which this information is sought. In the next article on this topic we’ll dissect a current request which contains more background narrative than this one.
The essential element of any narrative is that you are actually writing this as background for the judge which will review this case later should it evolve into civil or criminal action. The narrative also sets a reasonable tone, which is to counter the reputation often established by sovereign citizen tactics. Although well-meaning, and possibly even legally correct, the sovereign citizen shotgun approach is often self-defeating. As a result, officials have learned to ignore most citizen involvement, writing it off as the ravings of a harmless nutcase against whom most judges will rule out-of-hand. This is one reason why getting an attorney involved in any level is important; sovereign citizens avoid attorneys. Showing up with an attorney or having one draft a letter puts punch in your efforts; they can’t just laugh you off as a sov. Once they see something sail across their desk on an attorney’s letterhead, your entire effort then represents a much more serious threat, especially projected in their minds into the eyes of a judge they might one day face. The resulting change in an official’s tone is remarkable, and experiencing this should be on everyone’s bucket list.
This particular narrative also closes a loophole that some officials may attempt to squeeze through. We paste from the request:
I am interested in each federal, state, other government agency, or private grant awarded to the city of Manassas over the past twenty years. At this point, I am only interested in a list of the grants, with amounts. The Georgia Open Records Law does not require an agency to compile a list or new report, but you may choose to do so if you think it to be advantageous. If you choose to not compile such a list, I request a copy of the first page or pages of each grant award which contains the subject of the grant, the date awarded, the awarding entity, and amount of the grant. From this list I may request additional information in the future, but the full text of each grant application or award is not a subject of this request.
You will recall from the Leech City description of the Georgia open records law that officials are not required to compile new reports or summaries in response to a request, although they may do so if they choose. In this request, we want to find out what grants the city has received over the last 20 years. Although a reasonable person would say a summary would be the best way to present this information, a contorting official may, correctly, claim that such a summary is not required, and then provide no information at all. As a result, we give the official an option: produce such a summary, or produce the pages from which such a summary would be compiled. Either way, the information sought becomes the subject of the request, not the form in which the information is presented. Failure to comply with this reasonable option will then later appear to be unreasonable, and possibly even criminal. The “why” behind the official’s unreasonableness then becomes an important question to ask, and can further assist your intelligence operations with target selection and prioritization.
We also limit the amount of information requested, which prevents the agency from attempting to copy-bomb the response by providing full text, which could run into the thousands of pages, in some cases.
Specific information requested
Our request then repeats the specific information requested, preceded by this notice:
Accordingly, I specifically request from you, under the provisions of the Georgia Open Records Law (O.C.G.A. §50-18-70, et seq.), the following information:
That statement, which is boilerplate in all our requests, makes it clear that this is a request under the auspices of the relevant state law, and not just a random musing.
Next, the meat of the request, in clear and unambiguous language. In this case, although an option is presented, each option is clearly stated.
1. A summary list of each federal, state, other government agency, or private grant awarded to the city since January 1st, 1997. If no such grants exist, so state,
2. A copy of the first page or pages of each federal, state, other government agency, or private grant award which contains the subject of the grant, the date awarded, the awarding entity and amount of the grant, awarded to the city since January 1st, 1997. If no such grants exist, so state.
An essential element is the “If no such grants exist, so state.” We often include this language, even though any conscientious official would already state this as a reason why the request was not completed if indeed this was the case. The reason we include this phrase is that malevolent officials will latch onto this cue, and petulantly respond that the subject of your request does not exist, when in fact it does. This situation is better known as a false official statement, and then becomes a basis for further official action, civil or criminal, as well as providing an additional cue to your intelligence operation. The beauty of this approach is that the innocent pass by unharmed, while the guilty are snared by their own evil nature.
Means of response
This section tells the official how the information is to be provided. Typically, we will ask this to be mailed to us. Or, you may wish to ask them to call you when the information is ready for you to then come pick it up, either during normal office hours or before an official meeting.
The final section reminds the official of their legal responsibility to respond to this request, including relevant penalties for failure to respond. This helps cut through a spurious ignorance-of-the-law defense, an excuse often granted to public officials, but even more often denied to citizens by those same officials. Our statement here is boilerplate in all our requests:
I am advised by counsel that if my request is denied in whole or in part, the law requires your agency to justify all redactions by reference to the exemptions in the Act, and specify code section, subsection and paragraph. O.C.G.A. §50-18-71(d). I am further advised by counsel that the law also requires you to release all other portions of a record that contains exempt material. O.C.G.A. §50-18-72(b). I am further advised by counsel that the Georgia Open Records Act sets criminal and civil penalties of $1,000.00 for any person or entity that fails to comply with the terms of the Act. O.C.G.A. §50-18-74. Therefore, I expect your agency to produce the requested records within the three-day limit or give written reasons why the records are unavailable in this time period and a timetable for their prompt production. O.C.G.A. § 50-18-71(b)(1)(A).
Again, this strips away the sovereign citizen meme by referencing our attorney’s advice. Not only has our attorney reviewed our template, in this case, due to the potential downstream consequences of this information, he has also reviewed this specific request and given it a thumb’s up. If you haven’t yet consulted an attorney about your own format, then you may wish to change the language to something like:
My understanding of state law is that if my request is denied in whole or in part, the law requires your agency to justify all redactions by reference to the exemptions in the Act, and specify code section, subsection and paragraph. O.C.G.A. §50-18-71(d). It is also my understanding that you are required to release all other portions of a record that contains exempt material. O.C.G.A. §50-18-72(b). It is also my understanding that the Georgia Open Records Act sets criminal and civil penalties of $1,000.00 for any person or entity that fails to comply with the terms of the Act. O.C.G.A. §50-18-74. You may wish to consult your city (county, authority, commission, whatever) attorney to verify your responsibility under these legal provisions. Therefore, I expect your agency to produce the requested records within the three-day limit or give written reasons why the records are unavailable in this time period and a timetable for their prompt production. O.C.G.A. § 50-18-71(b)(1)(A).
Again, this is not legal advice, just options you may wish to consider for your own efforts. If you are going to mount an effective civil affairs effort, we think it is worth spending a few bucks on an attorney to review your template, so that you can then use the magical words “I am advised by counsel” on your requests.
In this article, we have dissected a real-world records request in progress to illustrate the essential elements of this powerful corruption-fighting tool, best employed as one element of a larger combined civil affairs effort. In future articles, we’ll dissect the response to this and other requests. We’ll also show how some of our early requests, lacking these elements, were less effective than we would have wished. Future articles will also illustrate an initial recon-by-fire, resulting in evasiveness by the target official, and then followed by specific requests which zero in on potential misconduct.