Vol. VII, No. 1
Surrogate FOIA Requests Increasing
In recent years, there has been a growing trend toward "surrogate" Freedom of Information Act requests -- those made by persons or entities seeking federal records on behalf of others. This is a type of use -- and perhaps abuse -- of the FOIA that Congress hardly envisioned when it enacted the law in 1966.
Though there are various reasons for the increasing popularity of surrogate FOIA requests, their appeal in some instances lies in the anonymity that they allow the true requester. For example, a corporation may want such anonymity when it seeks information about a competitor. Similarly, a corporation or other organization which suspects that it may have come under federal scrutiny could seek to verify that through the FOIA, but might prefer not to do so directly. In other instances, the surrogate relationship might be more a matter of expediency.
Surrogate FOIA requesters generally fall into two distinct categories: the formal organization designed to serve as a "clearinghouse" for government information on a financially self-sustaining basis, and the individual who sets himself up as a surrogate requester for others.
Perhaps the best known surrogate requesters are the commercial enterprises that have sprung up in the Washington, D.C. area to engage in the business of information acquisition and sale. Referred to by some as "cottage industries," these business entities serve a nationwide clientele consisting of any corporate or other type of customer willing to pay for compiled government information.
The largest such enterprise, at least as measured by current volume of requests, is FOI Services, Inc., which specializes in access to FDA information and uses the FOIA almost exclusively. Its FOIA request load is so great at the FDA that that agency bills it on a monthly basis, rather than for individual requests, and its monthly FOIA bill is sometimes as high as $4,000.
At the Defense Department. such enterprises are regarded as "data brokers," because they do little more than compile publicly available information pertaining to the defense procurement process and then sell it, at a considerable profit, to potential government contract bidders.
Quite recently, a similar type of FOIA clearinghouse has been established with the extraordinary goal of obtaining and compiling federal records on matters of national security and foreign policy decisionmaking.
Under the name "The National Security Archive," this entity came into being in late 1985 with the avowed purpose to "identify, obtain, house, index, analyze, and disseminate contemporary, declassified and unclassified United States government documents pertaining to foreign, defense, intelligence and national security policy."
This unprecedented enterprise is the creation of' former Washington Post reporter Scott Armstrong, who serves as its executive director and envisions it as a clearinghouse, or surrogate requester, for all FOIA requests made by journalists and academicians within its broad subject matter areas.
A fundamental aspect of its operation, according to the Archive's foundation grant proposal, will necessarily be the compilation of government records obtained under the FOIA for direct sale, as "document sets," to major research libraries on a regular subscription basis. Also planned to be sold. to an even wider range of subscribers, are indices of the records obtained by the Archive either for its own use or on behalf of others.
Although this enterprise has obtained start-up foundation funding, as well as additional support from the Brookings Institution, its plans call for it to be "financially self-sufficient through sales of document sets and hard-bound and computerized indices of the document sets" within a year. Armstrong even envisions that the Archive's "client" list will include the very federal agencies from which the records are obtained.
While it remains to be seen exactly how this new FOIA request enterprise will affect the functioning of federal agencies in its particularly sensitive subject matter areas, many agency officials are already quite concerned about its potential impact.
They point to the more than 2,000 FOIA requests made by Scott Armstrong during recent years and to the enormous difficulties that they have posed for agencies such as the Departments of State, Defense and Treasury. Not only have Armstrong's requests been numerous and wide-ranging, they have been so massive in some instances as to clog agency FOIA processing channels to the detriment of other requesters.
One such request, for example, sought no fewer than 24 linear feet of Defense Department records, most of which were highly sensitive and classified.
Moreover, because the matter was brought to court by The Washington Post (upon whose behalf Armstrong had initially made the request), the Defense Department was required to laboriously prepare a Vaughn index of all the withheld materials. And then after The Washington Post chose to litigate further over only four of the records, Armstrong himself sought to intervene in the case to continue contesting all 24 linear feet of records.
Also of great concern in the case of any organized clearinghouse for federal information is the risk that various items of seemingly nonsensitive information can be pieced together to reveal a sensitive larger picture. When such a large-volume FOIA requester as Armstrong -- or potentially his Archive -- blankets several agencies with related requests, that risk increases considerably.
Indeed, Armstrong has publicly acknowledged that he has on numerous occasions engaged in the practice of filing duplicative requests for the same document at multiple agencies, or components within an agency, with the hope that one might release more information than the others. In the face of such an approach, particularly by a well-organized and wide-ranging FOIA requester, the careful coordination of agency responses is essential. (See "On Agency Practice" box on this page.)
Finally, there are the individuals who, for one reason or another, make FOIA requests on behalf of other persons. This practice is most common among prison inmates, who perhaps see it as merely an extension of the traditional "jailhouse lawyer" role. Some prisoners may do this on a "fee" basis, while others seem to be satisfied with the burdens they are able to inflict upon federal law enforcement agencies, including their jailers.
The most ubiquitous such surrogate FOIA requester in recent years has been Michael C. Antonelli, a long-term inmate at a federal penitentiary in the midwest who has served time for conspiracy, bank fraud, weapons violations and involvement in a series of bombings.
During the past few years, Antonelli has made hundreds of FOIA requests on behalf of other persons to various federal law enforcement agencies, with the written consents of the third parties.
When he is dissatisfied with an agency's response to such a request, Antonelli takes his surrogate role one step further and brings a FOIA lawsuit against the agency, again in his own name. Presently before the courts are dozens of such "Antonelli" FOIA cases, including many which raise an issue of his entitlement to file such actions without paying court fees, on a claimed in forma pauperis (personal indigency) basis.
In fact, the Department of Justice recently challenged the veracity of Antonelli's in forma pauperis applications in more than two dozen cases in which he was evidently suing on behalf of other persons with their financial support.
This extraordinary challenge, which was based upon facts about Antonelli's financial arrangements unearthed by Department of Justice attorneys, has led to an unprecedented series of court rulings dismissing Antonelli's lawsuits, with prejudice, as a sanction for his misrepresentations. In upholding the principle of these rulings on appeal, Acting Chief Circuit Judge Patricia M. Wald even went so far as to speak pointedly of Antonelli's "fraud." Antonelli v. DEA, No. 85-6118, slip op. at 3 (D.C. Cir. Feb. 20, 1986).
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