Legal notices in action
For a recent investigation with the Cicero Independiente, we requested documents from the Illinois Environmental Protection Agency called a “Notice of Intent to Pursue Legal Action,” related to the Koppers coal tar plant. The 101-year-old chemical facility located near Cicero has been mired in a long history of air pollution and reported violations of environmental laws.
For an interactive database at ProPublica called “Trump Town,” which provided a running list of every political appointee in the Trump administration, we also routinely requested documents that federal agencies file with the U.S. Office of Government Ethics, when they refer potential violations of conflict-of-interest and other ethics laws to the Department of Justice for prosecution (or not).
These legal referral notices, which are called Form 202s, are filed during every presidential administration and are only made public once the underlying case is resolved in one way or another — with the DOJ prosecuting the official, declining to bring charges in the case or settling the matter outside of court. Names of officials who were never criminally prosecuted, along with other personally-identifiable details, are typically redacted, citing FOIA exemptions 6 and 7C. (Read more about those exemptions on MuckRock’s federal FOIA exemption guide.)
The legal notices — oftentimes purposefully vague and heavily redacted — were still critical for both projects.
Before we received the Illinois documents, we only knew of the existence of a potential lawsuit being worked on by the Illinois Attorney General’s office against Koppers. But the referrals had been filed at least two years ago and had been determined exempt from Illinois’ Freedom of Information law. When we asked the agencies questions about the referrals, both parties declined to give more information.
This is where the notices came in handy. The documents gave our reporters an understanding of the legal trouble that Koppers could be facing by outlining the specific alleged violations of Illinois environmental laws by Koppers.
Similarly, the Department of Justice legal notices provide previously-unpublished details about cases we knew little about. Many of these cases were referred to a U.S. attorney’s office but ultimately didn’t rise to a criminal prosecution. For example, in both 2017 and 2018, the Department of Education’s inspector general referred two separate cases to the DOJ, related to potential violations of 18 U.S. Code 208, a fairly-serious statute that “prohibits an executive branch employee from participating personally and substantially in a particular government matter that will affect his own financial interests.”
So-called “willful” violations of that statute can result in a felony, with a prison term of up to five years. In both cases, the DOJ’s public integrity unit declined to bring charges.
We are publishing, for the first time, these Form 202 notices, covering the Trump administration, from the following 18 federal agencies: the State Department; Department of Homeland Security; Department of the Interior; Securities and Exchange Commission; Department of Treasury; Department of Education; Department of Energy; Department of Transportation; Department of Commerce; Office of Management and Budget; Commodity Futures Trading Commission; U.S. Postal Service; Export-Import Bank; Tennessee Valley Authority; National Labor Relations Board; Peace Corps; National Credit Union Administration; and the U.S. Agency for International Development.
Legal notice documents, in a nutshell
Some state and federal laws require pre-litigation letters, often called “demand letters,” or notices of legal action, to be sent from one party to another before a lawsuit is filed. These letters put one party on notice that the other is considering legal action.
These types of notices provide some information on what the lawsuit is about but, in our case, did not fall under state or federal exemptions relevant to confidential legal or attorney-client communications.
The Form 202 notices with the federal Office of Government Ethics occur later in the legal process, when a case is mostly decided or finished. At that point, the decision by the DOJ is a matter of public record.
Why legal notices are useful
Communication between attorneys and their clients often gets moved behind the wall of “attorney-client privilege,” outlined in Exemption 5 of the Freedom of Information Act. The challenge for FOIA requestors interested in a pending lawsuit involving a public agency is to get details on the lawsuit without running into the wall of Exemption 5 or similar exemptions in state public records laws.
A notice to pursue legal action can be a small, but important, peek into the details on why legal action is being considered before you hit the wall of attorney-client privilege.
How to get similar legal notices
-
Find out if the agency you’re interested in is required to send a demand letter for legal action it is involved in
-
Get the name right: Each agency has its own language for internal documents, and these could be called demand letters, notice to sue or notice to pursue legal action
