The full-service firm for Alaska's complex future

Freedom of Information Act / Public Records Act Practice Group

Birch Horton Bittner & Cherot both defends against and prosecutes requests for documents under the federal Freedom of Information Act (FOIA) and similar Public Records Acts (PRA) in the various States, including Alaska. We also assist local government clients who receive FOIA requests.

FOIA / PRA Defense. If you or your business supplied documents to a government agency, and some opponent or other third party has made a FOIA / PRA request to the government agency for those records, we can help you defend against the request. We will assist you by evaluating and asserting applicable exemptions that allow the agency to withhold records from the third party. Exemptions include: (1) certain confidential business information, (2) personal privacy, (3) documents covered by specific confidentiality statutes, such as health records and oil / gas data, and (4) several others.

In both our Anchorage, Alaska and Washington, D.C. office, we have experienced FOIA / PRA attorneys and also paralegal/research director professionals adept in the document management work which is a key component of FOIA / PRA defense. We utilize document management software to aid in coding documents for potential exemptions. If the government agency upholds our assertion of FOIA / PRA defenses, the disappointed party requesting the documents may sue the government agency. We may then assist our client in intervening in the case to supplement the agency’s defense.

We also assist with advance planning for defense against future FOIA / PRA requests. Many clients, particularly those in regulated industries, must submit sensitive documents to the government agencies that regulate them. When submitting these documents, it is important to prepare for future FOIA / PRA requests from hostile parties. Sometimes the government agency will agree to examine the documents, but not keep a copy that could later be the subject of a FOIA / PRA request. If the agency insists on keeping a copy, the documents may be prepared in a way that supplies the agency with the information it needs, but not extra information. There are other planning methods.

FOIA / PRA Prosecution. If you believe a government agency had made some incorrect decision regarding your business, or you participate in a regulated industry in which your opponents have done something wrong or have received unduly preferential treatment from the government, a good way to build your potential case is often to submit your own FOIA / PRA request to the government agency that has the documents. Because courts commonly treat lawsuits for judicial review of agency action as “appeals,” you often cannot obtain normal document discovery from the government agency during the litigation, but you usually can obtain documents through FOIA / PRA, both before and during the litigation. You can also use documents obtained through FOIA / PRA in your comments or other advocacy to the government agency, before the agency rules.

We will help draft FOIA / PRA requests. If the government or the third party who submitted the documents asserts FOIA / PRA exemptions, we can help evaluate the asserted exemptions and seek to have any unwarranted exemptions overruled.

Sometimes the government agency is slow in responding to FOIA / PRA requests, or makes an unwarranted decision to impose exemptions or decline to produce documents. If this happens, we can file a lawsuit asking a judge to enforce the request. These lawsuits may lead to an agreement by the government to produce documents on a rolling monthly installment basis, and so can be relatively inexpensive to prosecute.

As with FOIA / PRA defense, our paralegal / research director staff experienced in document management play a critical role in FOIA / PRA prosecution.

FOIA / PRA for Government Clients. Finally, several of our clients are local governments or state government units which receive FOIA / PRA requests and must fairly administer them. We will assist these governmental clients in accurately applying the FOIA / PRA laws that govern them, using our experience in this area of the law.