In 2022, the Federal Motor Carrier Safety Administration “proposed requiring commercial motor vehicles to install an electronic device that would wirelessly transmit identifying information to law enforcement on demand. How is that consistent with the Fourth Amendment and its prohibition on unreasonable searches and seizures? There is hardly probable cause that a crime is being committed in each and every commercial vehicle. How is that consistent with the Fifth Amendment ban on taking private property? That seems like the sort of permanent — if minor — physical presence of government-mandated apparatus on private property, that was considered an unconstitutional taking by the Supreme Court’s decision in Loretto v. Teleprompter CATV Corp. (1982).”
So argues a February 2023 email to the FMCSA, which was produced by that agency today after a delay of over a year. Today, the agency finally released records sought by Liberty Unyielding and the Bader Family Foundation in a Freedom of Information Act request submitted on February 7, 2023, well over a year ago. Under FOIA, agencies are supposed to issue determinations in response to FOIA requests within 20 working days, indicating the scope of the records they will produce, and the scope of the records they will withhold under any FOIA exemption. Then, they are supposed to produce the records themselves “promptly” thereafter, which the courts say means producing them “within days or a few weeks,” “not months or years,” in the typical case.
FMCSA did not satisfy these requirements at all. It first told Liberty Unyielding and the Bader Family Foundation that “processing your FOIA request may take up to 5 months however, could be sooner.” But it produced nothing in those 5 months, and issued no determination indicating what records it might produce in the future. As seven months approached with no documents and no further response, the Bader Family Foundation sued the FMCSA on September 6, 2023, to force it to produce records, which the FMCSA belatedly did on March 28, 2027, one day before a status report about the FOIA request was due in federal court.
Today, FMCSA identified 491 pages of records that are covered by the FOIA request, of which it released only 8 pages in full, and 22 pages released in part, with 461 pages withheld in full. The records released can be accessed by clicking on this link.
The withheld pages and redactions were withheld under 5 U.S.C. § 552(b)(5) — deliberative-process and attorney-client privilege — and 5 U.S.C. § 552(b)(6) — clearly-unwarranted invasion of personal privacy. I believe that some or all of the withheld material was improperly withheld, because its disclosure would not result in any unwarranted invasion of privacy or other harm. FMCSA’s letter explaining the withholdings and redactions is at this link.
The pages FMCSA produced were in response to a FOIA request that sought
“All communications (other than comments posted at Regulations.Gov) between March 1, 2022, and the date you process this request, about the constitutional implications of requiring commercial motor vehicles to install an electronic device that could wirelessly transmit identifying information to law enforcement, or that would wirelessly transmit identifying information to law enforcement on demand. That includes any communications between March 1, 2022, and the date you process this request, regarding whether the Fourth Amendment prohibits transmitting such information without a warrant, or without probable cause to believe a crime is being committed, or whether the required installation of a transponder constitutes a warrantless search in violation of the Fourth Amendment or a taking of private property in violation of the Fifth Amendment.”
The FOIA request related to a proposed FMCSA regulation, available at this link.
An agency official apparently used a private email account to conduct agency business, which is sometimes a controversial practice. See this email that was produced.
The emails produced are from around the clock, not just a narrow band of time during the day. Years ago, when I submitted freedom of information (FOIL) requests to New York City government, I found that city employees’ emails were mostly sent during the morning after 9 a.m., and few were sent as 5 pm. approached, reflecting the laziness of New York City government employees, who often left work before 5 p.m. By contrast, federal employees basically put in an 8-hour day, and some work from home at odd hours of the night.
As law professor David Bernstein noted in 2007, “There’s a long and honored tradition of New York City employees with non-office jobs working only part of the day. My family’s alarm system, for example, was put in during ‘working hours’ over a several day period by a city employee, who always seemed to be able to arrive by 1 pm. A close relative who worked as a city health inspector started work at 9 and was usually home for lunch.”
