In civil litigation, one party may request from the other party information related to the case. Although there are various methods, the process is called generally “discovery.” One of those methods is the “document request.” The document request is self-explanatory: the requesting party provides the other party with a list of documents it wishes to inspect. The request may seek specific records (“the company’s employment policy manual”) or may describe the records more generally (“all e-mails related to Smith’s termination”).
The basic rule of discovery is that a party may obtain any information that pertains – even slightly – to any issue in the lawsuit, as long as the information is not “privileged” or otherwise legally protected. Common discovery requests include:
- the identity of anyone who might know something about the dispute or about the injuries or money losses either party suffered
- detailed information on how a business is run (for example, a party might try to determine how a company that sold a dangerous product decides what to sell, or how a business makes employment-related decisions or keeps its accounting records)
- documents relating to the dispute, and
- the personal, educational, and professional background of a witness.
Public records requests act in a similar manner. Any member of the public may request records relating to the activities of that office. Most state codes provide a broad definition of the term “public record” and case law has further refined the meaning. And while a document request in civil litigation resembles a public records request, the two are not identical. There are significant differences which we will cover later in this article. But first, let’s discuss why it may be beneficial to add public records requests to your claim investigation process.
Why do you need to find information via public records?
- Improve the case and gather more facts and evidence
- Increase the value of the case
- Save money for your firm and client
- Build your reputation as a legal team
What kinds of things can you find using public records requests?
- Court records (Public Index Search)
- Business names and registered agents
- Statistics to support your case
- Contradictory statements by a defendant
- Medical diagnosis and procedure codes
- Prescription drug package inserts
- Examples of prior notice
The variety of potentially useful public records available for the asking is vast. In most states you can request permitting records, records pertaining to state-issued professional licenses, publicly filed corporate records, town meeting records, records concerning agency decisions or acting on any number of topics, among many other types of documents. And, under public records laws, the responsible governmental record custodian receiving a public records request must respond without unreasonable delay, usually within days. Compare that to the thirty days and added formality of a discovery request directed to a party in the litigation. The public record custodian must either grant or deny the request, and if agreeing to provide the records, the custodian must provide an estimate of the cost to assemble and reproduce them.
In addition to formal requests, you can use public records to find information on:
- Vital statistics for your clients
- Potential witnesses
- Potential jurors
- An adverse party
- Medical and scientific experts
Public records can be used to find their background information, contact information, information to impeach their testimony, visual aids for trial, and so on. Vetting experts and other professionals working in litigation is crucial to prevent claims from being challenged or undercut in a deposition or trial. Public records searches can provide information on an expert’s limited practical experience, missing credentials (e.g., lack of board certification), or inflated credentials. You can also check for any licensing violations or reprimands.
For the most part, state and local government agencies across the country are allowed to charge a “reasonable” fee to recoup the costs of providing public records. But the definition of what is “reasonable” is fluid. What might be reasonable to one person, like 15 cents per page, might be wholly unreasonable to another.
Some states don’t have a set fee schedule for providing access to public records, leaving it up to the agency to “fix a reasonable fee to be charged unless the fee is set by statute or rule.” This ambiguity has led to confusion, enough confusion that some states have begun implementing legislation to further define what “reasonable” really means.
Differences between Public Records and Lawsuit Discovery
Discovery arises in litigation, which is by definition an adversarial relationship. It is in the interest of the party receiving the discovery request to provide the minimum amount of information permitted. A public records request involves a member of the public asking a public servant to provide public information. In discovery, the requested material must have some relation to the underlying case. At a minimum, the request must be “reasonably calculated to lead to the discovery of admissible evidence,” according to Fed. R. Civ. P. 26. Therefore, the party receiving the request has the right to require the other side to explain why they are requesting the information. If the requesting party cannot articulate how the requested material is “reasonably calculated to lead to the discovery of admissible evidence,” the requesting party is not entitled to the information. There is no such litmus test with public records. The public is entitled to inspect and copy the records simply because they are public records. There is no need to explain how the request is relevant to any topic. In addition, most states expressly forbid the public office (other than in limited circumstances) from even asking the requesting party for a written request, the party’s identity, or the intended use of the records.
Using the Freedom of Information Act
Since 1967, the Freedom of Information Act (FOIA), 5 U.S.C. § 552, is a federal freedom of information law that requires the full or partial disclosure of records controlled by certain agencies of the United States government upon request. It is often described as the law that keeps citizens in the know about their government. Persons subject to agency regulation often use the FOIA to keep abreast of the agency’s operative law and of studies that may lead to changes. Law firms representing energy companies, for example, often maintain their own libraries of Department of Energy records. FOIA requests are formidable weapons in environmental disputes, and attorneys who have a proper understanding and respect for them have an advantage over those who do not. Many federal agencies like the Food and Drug Administration, the Environmental Protection Agency, the Department of the Interior, and the Department of Health and Human Services can provide information related to emerging mass tort litigation.
How to make a FOIA request:
- Identify the agency
- Check requirements for that agency
- Make your request in writing
- Describe the records you want
- Specify the format for the response (printed or electronic)
- Pay associated fees
There is no fee to file a FOIA request. FOIA established three fee categories that agencies use to determine if fees will be charged:
- Commercial requests may be charged fees to search for records, reviewing records and photocopying them;
- News media, educational, or non-commercial scientific institutions are charged for photocopying, after the first 100 pages;
- All other requesters.
Law firms are typically categorized as number one. Law firms will usually have to pay copy charges per page, research fees and postage. FOIA responses usually cost less than the fees associated with retrieving medical records.
The amount of publicly available information available can put you far ahead in discovery, save time and money, and bolster your claims so they are in a position to receive a fair and equitable settlement. MTI’s Mass Tort Forum has a dedicated Paraprofessionals channel where you can learn cost-saving investigative techniques from your peers.