Dear Congressman, Not Snoopy FOIA Person
June 22, 2009 10:09 AM   Subscribe

I want to write my U.S. Congressman on at least one delicate topic. But, I'm kind of paranoid that my letter will become public record that is subject to a FOIA request. I have a very distinctive name that when Googled, I pop up immediately in the form of my professional profile. I don't want what I write to my Congressman to be available to anyone to read and who then pops my name into a search engine and they find me on the internet. Am I disenfranchised from making my opinion known or can I write without fear? FYI - there is nothing I can do about my name or my profile being on the internet.
posted by Leezie to Law & Government (12 answers total)
This page seems to cite case law that is relevant to your concerns.

Are the names of individuals who write letters to government officials protectible under Exemptions 6 and/or 7(C) of the FOIA?

Yes, in most instances. In general, the identity of one who writes to a government official expressing a personal opinion may be withheld under one of the FOIA's personal privacy exemptions. Letter writers usually have some expectation of privacy when expressing their personal opinions, see Holy Spirit Ass'n v. FBI, 683 F.2d 562, 564 (D.C. Cir. 1982) (MacKinnon, J., concurring) (private citizen has "expectation that when he provides (usually voluntarily) information to the government he will not be damaged in his person or reputation by disclosure of the source"), and there is "a strong public interest in encouraging citizens to communicate their concerns . . . to their elected representatives." Holy Spirit Ass'n v. Department of State, 526 F. Supp. 1022, 1034 (S.D.N.Y. 1981). Cf. Brant Construction Co., Inc. v. EPA, 778 F.2d 1258, 1264 (7th Cir. 1985) (writer of unsolicited letter can be confidential source under Exemption 7(D)). But see Powell v. Department of Justice, Civil No. C82-0326-MHP, slip op. at 5 (N.D. Cal. Mar. 27, 1985) (individuals do not retain a privacy interest when writing to public officials) (appeal pending).

Indeed, providing protection to one who volunteers information to the government by letter is entirely consonant with the well-established principle that the identities of persons cooperating in government investigations are protectible under Exemption 7(C). See, e.g., New England Apple Council v. Donovan, 725 F. 2d 139, 144-45 (1st Cir. 1984); Iglesias v. CIA, 525 F. Supp. 547, 563 (D.D.C. 1981); Church of Scientology v. Department of State, 493 F. Supp. 418, 421 (D.D.C. 1980). On the other hand, the identity of a letter writer should be released where there is an indication that there is
no expectation of privacy (e.g., where the letter has been distributed widely), cf. Brant Construction Co., 778 F. 2d at 1264, that the individual is writing on behalf of an organization and thus is not expressing personal views, or that the letter is itself a request for information under the FOIA, see FOIA Update, Winter 1985, at 6. Of course, even where the identity of the writer is protected, the substance of the correspondence should be released insofar as the substance itself is not identifying or otherwise exempt.
posted by jessamyn at 10:17 AM on June 22, 2009 [3 favorites]

How realistic is it that A.) someone would know that you have written your congressman, B.) care enough to both FOIA request it, and C.) actually publish or in some other way make public your letter?
posted by wfrgms at 10:18 AM on June 22, 2009

Why do you think this would be FOIA'd? I'm not asking directly, but is there a compelling reason you think it will be?

It is highly unlikely you will have a problem.
posted by jgirl at 10:18 AM on June 22, 2009

The expectation of privacy, even if written into law, does not guarantee it. Remember these two adages: Ask first and seek forgiveness later (that applies to the release of your information), and Never write when you can speak, never speak when you a nod will do.
posted by Gungho at 11:04 AM on June 22, 2009

What do you want done?

Is this a "please vote my way!" letter? Then just write it anonymously as "a constituent" and send it. The staffer who reads it won't care. The staffer who reads it likewise isn't going to pick up your letter, say "Oh, it's leezie," and forward it to the MC him or herself who will then suddenly reverse him- or herself. Your letter is going to be input data for some daily or weekly summary of letters. That is all. For that, writing an anonymous letter should be fine.

Or, just call the district office and ask if there's going to be a public event sometime in the next month or two where the MC is speaking and you might be able to get a minute of the MC's time; not as an appointment, but just in the post-whatever rabble and schmoozing. These are more common than you'd think.

If you need help with some agency about a ticklish matter, that's a different kettle of fish.
posted by ROU_Xenophobe at 11:06 AM on June 22, 2009

FOIA does not apply to congress.
posted by piro at 11:18 AM on June 22, 2009

Call. All that matters to the folks (who are usually interns) receiving your messages is whether you are for or against the proposed action on the issue. All of the nuance of your opinions, all of your suggestions for innovative reform, are going to be ignored even if you spend weeks crafting the greatest letter ever written. If you call, your opinion will be recorded the same way, but there won't be specific words associated with it.

If you do write, you can use your initials instead of your name (E.B. White, F.A. Hayek, etc.).

I'm pretty sure that your letter will never end up on the internet, mostly because no one will care enough to request it and publicize it. Unless you are famous and admitting to a major indiscretion, you're pretty safe. But both of the above measures will take your level of security from 98% to 99%.
posted by decathecting at 11:25 AM on June 22, 2009

If you have a relatively common, or at least not unusual, last name You could always shorten your first name to an initial.
posted by edgeways at 11:31 AM on June 22, 2009

How realistic is it that A.) someone would know that you have written your congressman, B.) care enough to both FOIA request it, and C.) actually publish or in some other way make public your letter?

Well, imagine if congress was debating a bill on outlawing cartoon child pornography, and you wrote a letter informing your congressman about the existence of graphic novels with serious artistic merit, marketed towards adults, which include things that would be illegal under this bill. Then imagine if child-protection campaigners who supported the bill sent every representative a FOIA request for every letter they received on the subject, and published a list of people online without the context of your entire letter. That could be pretty embarrassing.

Likewise, you might be writing about violent pornography, or films depicting rape, or the church of Scientology, etc etc.
posted by Mike1024 at 11:41 AM on June 22, 2009

Why sign your name to the letter?
posted by nomad at 12:00 PM on June 22, 2009

Unfortunately, Lezzie, you pretty much have to sign your name to the letter in order to be sure your opinion is recorded. For the most part, I wouldn't count on having your opinion recorded unless you write a letter with your name and include a return address: if you include the address, then they have to write you back and therefore have to put it into the computer system. On the other hand, the likelihood that your congressman's office actually saves copies of correspondence after recording it is realistically slim to none.

I'd go with the initials.
posted by l33tpolicywonk at 4:11 PM on June 22, 2009

With freedom of speech comes the burden of having to take responsibility for what you say.

You can't have the luxury of anonymity and the power of an individual voice. Which is a good thing- imagine a society that was governed like the Usenet?
posted by gjc at 7:28 PM on June 22, 2009

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