What is the Freedom of Information Act (FOIA)?
The Freedom of Information Act (FOIA) is a law aimed at helping people understand the decisions the government is making. According to the federal government’s FOIA website, “[t]he basic function of the Freedom of Information Act is to ensure informed citizens, vital to the functioning of a democratic society.”
In essence, FOIA allows people to request documents from the federal government. Last year, for instance, How to Justice, in conjunction with Interrogating Justice, filed two FOIA requests with the Bureau of Prisons and Department of Justice. In one, we asked for documents about their approach to compassionate release under the CARES Act. In the other, we asked about the BOP’s implementation of the First Step Act Time Credits Program. (We received a disappointing response to one, and the BOP still hasn’t responded to the other.) Most states have their own versions of FOIA, too.
How does the Freedom of Information Act impact criminal justice?
Most of the time, when you think about FOIA requests, you think about organizations like ours or journalists asking for documents. This is absolutely an important part of FOIA. But FOIA’s protections apply to everyone, not just nonprofits, journalists and media outlets. And, on many occasions, FOIA is essential when someone is trying to collect evidence for a wrongful-conviction case.
In fact, the Innocence Project often files FOIA requests — and sometimes FOIA lawsuits — while pursuing wrongful-conviction investigations and claims. For instance, in 2019, the Innocence Project announced that it had filed a FOIA lawsuit to obtain “the key to exonerating untold numbers of people … wrongfully convicted on the basis of faulty ‘bite mark’ evidence.”
At the time it made the requested and filed a lawsuit, “[t]he Innocence Project ha[d] already helped to exonerate dozens of people who were convicted on the basis of bite mark evidence.” According to the Project, “[t]he archive, which is housed at the Department of Defense’s National Museum of Health and Medicine, holds the only centralized catalogue of cases in which forensic bite mark evidence was used.”
Who can you send a FOIA request to in the criminal justice system?
You can send Freedom of Information Act requests to a lot of key players in the criminal justice process. Northwestern Pritzker School of Law’s Legal Research Center has a helpful Illinois-specific page with the key players in that area. Northwestern includes the Chicago Police Department and the Illinois State Police, as well as information about Illinois FOIA law.
While there are some exceptions, you can also send FOIA requests to prosecutors, too. The Department of Justice’s website, for example, states that you “may request access to public, nonexempt records maintained by the Executive Office for United States Attorneys (EOUSA) and/or individual United States Attorneys’ Offices (USAOs).” Most local prosecutors’ offices permit the same.
The Freedom of Information Act helps you get documents in the government’s possession. You can send FOIA requests to police, prosecutors and other government agencies. Some records are exempt. But people often use documents they get in response to a FOIA request to win wrongful-conviction lawsuits.