Mikey Weinstein FOIA Lawsuit to be Heard Today

Today Michael “Mikey” Weinstein’s Freedom of Information Act (FOIA) lawsuit against the US Air Force Academy is scheduled for a settlement hearing.

Of all the legal actions he’s filed in recent years, it is the one he has the most likelihood of seeing some success in and, to a degree, that success would be warranted.

Weinstein has asserted that years ago he filed a FOIA that has largely gone unanswered from an unresponsive FOIA office at USAFA. He is generally correct when he asserts the regulations regarding FOIA requests, including, for example, the fact FOIAs are supposed to be answered within 20 days.

In a somewhat unusual twist, Weinstein has produced documents he says USAFA should have given him in response to the FOIA.  USAFA has been forced to explain why they weren’t included in the FOIA release.

USAFA’s FOIA office is clearly understaffed. USAFA admitted in 2015 that one single person worked in their FOIA office, and he was handling upward of 75 requests — with Weinstein’s accounting for some 11,000 pages of content. In a manner of speaking, that’s their “excuse” — but why they continue to have that excuse, rather than adjusting their manning to comply with the law or declaring Weinstein’s requests beyond the scope of the law, is unclear.

However, Weinstein is not without fault, either. He has filed repeated FOIAs that are extraordinarily broad, cover years of material, and do not appear to be in support of the “public information” purpose of FOIA. (In theory, a FOIA request is only supposed to be filled when the applicant has a reason for believing records exist and when the release of those records is in the public’s interest. It is not intended as a means to find out what someone “might know” or have on file, or to hunt for information on specific people.) For example, Mikey Weinstein requested that USAFA provide

All agency records relating to Bonnie L. Weinstein from January 1, 1999 to the date USAFA would produce the results of the FOIA search.

Weinstein is requesting an unlimited swath of records covering more than a decade, for a person about whom he has no reasonable reason to believe USAFA even has records, and for records that are exceedingly unlikely to be “in the public interest.”  And that’s just one of multiple parts of his single FOIA.  He essentially made the same request for every person in his family; it’s like a Weinstein family FOIA search.  (Imagine what would happen if USAFA was forced to answer every person who just whimsically decided they wanted to see what records USAFA might have about them and their family…)

Weinstein has previously used FOIA as his personal fishing expedition, and he’s used FOIA offices as his personal librarians and research assistants (hat tip to Chris Rodda). And his fishing expeditions have been successful (see the military Bible FOIA), which is why he’s continued to use them.

For example, while Weinstein is berating the failure of the FOIA system for not providing him the information he has requested, he hasn’t said much about the failures of the FOIA system that have provided him information he didn’t ask for — or wasn’t legally permitted to receive. FOIAs are notoriously released without all redactions accomplished — and an understaffed FOIA office handling thousands of pages of requests is a perfect setup for a failure.

There are plenty of examples of FOIAs releasing information they aren’t supposed to.

It’s one thing to make an error, though, and quite another for a FOIA office to go “above and beyond” and actually proactively give an applicant information they didn’t even ask for.

The USAFA FOIA office has done both for Mikey Weinstein, resulting in his MRFF receiving information they never should have had. The MRFF has then gone out of its way to publish that unauthorized information — while simultaneously admitting it wasn’t ethical for them to do so.

Apparently, ethics isn’t the MRFF’s strong suit. Just ask Chris Rodda.

The Air Force found out what was going on — and USAFA was hammered for it. That, too, may be contributing to why USAFA has been so slow to respond to Weinstein as they take excruciating steps to confirm their response is consistent with the law — unlike last time.

There is some validity to Mikey Weinstein’s complaint. USAFA should be handling its FOIA requests better, and Weinstein will likely (and should) prevail on at least some counts. But that should not overshadow the apparent ill-use of the FOIA system to serve Mikey Weinstein’s personal agenda. As a citizen he is entitled access to the FOIA process — but the FOIA process exists for the public’s benefit, not for Mikey Weinstein’s.