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Does the right against self incrimination have any bearing on FOIA requests?

I mean, if I request something from a government official, and the documents relate to criminal activity or theoretically criminal activity, does the 5th amendment come into play at all?

  • The wording of your question is rather vague. Are you thinking of some situation where the content of the FOIA request, or the act of filing it, would somehow incriminate the person doing the filing? For instance, Joe murders someone, hides the body in a sewer, and then files an FOIA request inquiring as to how often sewers are inspected? Or are you thinking that the request asks for material which might incriminate the official responsible for responding to the request, and therefore the official might have a 5th amendment right not to respond? – Nate Eldredge Feb 13 '16 at 3:35
  • Well I'm thinking of a case where an official is statutorily required to create a certain document...call it an "annual report." If the official never created it, and is asked to furnish it, he will either have to furnish it or admit that the document was never created in the first place. Suppose either there is or there isnt a "criminal" penalty for failure to create such report – Mr. A Feb 13 '16 at 11:05
  • I might ask for a list of all illegal bribes paid by some goverrnment agency (hoping the response would be "No illegal bribes were paid"). The person supposed to write the response to the FOIA request might have paid an illegal bribe. On the other hand, I think the person writing the response would be supposed to base the response on "official" knowledge of the agency, not his personal knowledge. So he might go through all official documents and might write his report based on this. – gnasher729 Feb 13 '16 at 16:27
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With a FOIA requuest, you don't ask a government official, you ask a government agency. A government agency isn't protected by the 5th amendment.

In practice, the response to a request isn't provided by an agency, but by an employee of that agency. That employee should respond based on the knowledge of the agency. If the employee has any private knowledge, that wouldn't become part of the response. That applies if the employee has private knowledge of a crime. If that crime was committed by someone else, it might have been illegal not to report the crime, but that is independent of the FOIA request.

Now let's say the agency has knowledge of a crime that "the agency" committed. (In reality I would assume some member of the agency did). Since an agency is not protected by the 5th amendment, it has to be part of the response.

Now let's say the agency has knowledge of a crime that the employee writing the response committed. That's when self incrimination comes into play. I don't think 5th amendment allows you to lie, including lying by omission. So quite possibly that employee can say "I'm not going to write the response to the FOIA request". In that case, the next employee would have to write the response, and that employee wouldn't be incriminating himself.

Now if all employees committed a crime together, then they might all be able to refuse to write the reply, but the agency still has to respond, so they might have to request outside help :-)

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