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I was reading an opinion in HUDGINS V. I.R.S., (D.D.C. 1985) regarding the ruling that the government is not required to answer "questions disguised as FOIA requests."

https://casetext.com/case/hudgins-v-irs

I think this view is entirely wrong. In my view, it is not the fact that a FOIA request appears to be a question which disqualifies the FOIA request. The only thing that can disqualify a FOIA request is the fact that "records" are not "reasonably described."

I am currently requesting from my state attorney general's office the "laws which are being used to justify X actions by the executive."

While it is true that this could be rephrased as a question, it does not fail to 1) "reasonably describe" 2) "records". Since I am asking the attorney general's office, they are either using laws to justify a course of action or they are not. If they are, then they know what records I mean. That is reasonably describing. And of course, laws are records. If they are not using laws to justify their actions, then of course they do not know what I mean. In that case, the law provides that they should say so.

Either way, you see the trap here, do you not?

The question: Based upon more than just Hudgins, is there anything to support my FOIA/FOAA(Maine) request as being valid?

My jurisdiction is Maine

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    It seems to me that your request is exactly the sort of "disguised question" that the ruling discusses. If they just sent you a link to the complete set of the state's laws, they have certainly included those which are used to justify X actions, so taken literally your request is satisfied. The only way that won't satisfy you is if you are not actually asking for records, but are asking the question: Which laws are used to justify X actions? And I don't think FOIA creates an obligation for the state to answer that question for you. – Nate Eldredge Feb 26 '16 at 0:06
  • Does a federal FOIA case even apply to a claim under a state law? – cpast Feb 26 '16 at 1:40
  • @NateEldredge Here's the problem though. Even if they gave me a link to all of the laws, that would have to mean there was a law inside all of the laws that justified what they were doing. My point is that there is no law to justify what they're doing. So by presenting what you suggested, they would in effect be lying. And lying is against lawyer ethics. – Mr. A Feb 26 '16 at 18:27
  • @cpast FOIA cases would only be used as a comparison where there is a lack of state precedent for it's own access law – Mr. A Feb 26 '16 at 18:28
  • @cpast - FOIA only applies to the U.S. government; but as Mr.A points out, that caselaw could be useful and persuasive to a court deciding an issue under the freedom of information laws in its own jurisdiction. – Mr_V Feb 26 '16 at 18:37
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I believe that you have misinterpreted the case, not least because the Hudgins v I.R.S case involves this only peripherally. The original case Diviaio v Kelly was dealing with a request for the number of photographs taken of the plaintiff and if these had been disseminated outside the CIA. This is in no way shape or form a request for records (the records were found to be legitimately exempt).

I see no problem in your FOI request. In fact, I can foresee the response:

These, http://www.maine.gov/legis/ros/meconlaw.htm, are the laws we use to justify these actions.

In a common law jurisdiction, a person (including the government) does not have to prove they are abiding by the law. The onus is on you to prove they aren't; they do not have to help you make your case.

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  • Here's the problem though. Even if they gave me a link to all of the laws, that would have to mean there was a law inside all of the laws that justified what they were doing. My point is that there is no law to justify what they're doing. So by presenting what you suggested, they would in effect be lying. And lying is against lawyer ethics. – Mr. A Feb 26 '16 at 18:26
  • I think this is a good answer! I would like to add but one thing but don't like to edit people's answers.There is an important distinction between FOIA (The Freedom Of information Act) and FOAA (Maine's Freedom of Access Act). They both deal with requesting information from the government, but likely have different requirements, exemptions, and case law interpreting their meaning. FIOA is only for the U.S. government, while FOAA is only for Maine. – Mr_V Feb 26 '16 at 18:28
  • @Mr.A - I hear your argument. Perhaps if you gave us more information on what you are requesting we could suggest general strategies to request information. – Mr_V Feb 26 '16 at 18:47
  • @Mr_Vitale - Well I want to see the law that justifies having 3-2 votes or 2-0 votes or 1-0 votes with three abstentions...on five seven or up to even nine member licensing boards. There is no law. My goal is to force the attorneys to admit that fact. It's all common law. That's objective number one. Force them to admit there is no law. The FOAA provides that when a request is denied, the reasons for denying the request must be stated. I want to request the law and have it be denied, with the stated reason being that the law does not exist. – Mr. A Feb 26 '16 at 18:53
  • @Mr.A - Sounds like a something where it will be difficult to get an answer through FOAA. If you fdo go the information act request route, Consider asking for e-mail communications, written documents, memorandum, etc. that were used in deciding that the votes by the licensing board were valid. Don't most committees/licensing boards require a quorum? – Mr_V Feb 26 '16 at 19:10

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