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December 19, 2008

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Jim Ash

When making a public information records request in Texas, are there any ways of checking the completeness of the information provided by the government agency? In Toussie v. County of Suffolk, 2007 WL 4565160 (E.D.N.Y. Dec. 21, 2007) the county withheld documents do you know how the absence was discovered?

Benjamin Wright

Toussie was a lawsuit, not a freedom of information request. In the e-discovery phase of the lawsuit, the county turned over only two e-mails -- which seemed suspcious. In this modern age, virtually any knid of transaction in government is likely to cause the creation of numerous e-mails. I speculate that the plaintiff in the lawsuit then complained to the court ("your honor, it strains credulity to believe that there were only two e-mails in this matter"), and then the county sorta acknowledged to the court that it had not conducted a really thorough search. This acknowledgement caused the court to act.

With respect to Mr. Ash's FOIA question, I'll offer a speculative answer, which is not specific to Texas or any particular situation: Let's say a citizen has requested information under a FOIA and government has responded by turning over some records. I'll bet that if the citizen can show it is likely some records are missing, then the citizen can force government to conduct a further search. Ways to show records are missing might include: 1. admissions by government employees; 2. logical gaps in the records that are disclosed (e.g., the records refer to, imply the existence of or hint about other records that were not turned over; or maybe gaps in dates on documents suggest that something must have been happening during the gaps, but records were not divulged with respect the the activity during the gaps); 3. statements by other government agencies (such as other counties) that in situations like the matter in question the agencies normally possess additional records.

I speculate that if a citizen sues government under FOIA and shows the court (through logic or evidence) that government is not being thorough in responding under FOIA, then government can be forced to explain itself under the rules of civil procedure governing the lawsuit. An example of forcing government to explain itself might be a deposition of government employees to get them on the record, under oath, about how well (or poorly) the search for FOIA records was conducted. --Ben

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