FOIA Advisor


Court opinion issued Aug. 22, 2016

Court OpinionsAllan BlutsteinComment

Zaldivar v. U.S. Dep't of Veterans Affairs (D. Ariz.) -- holding that: (1) plaintiff failed to exhaust his administrative remedies with respect to his request for certain records from his claim file; (2) the agency conducted an adequate search in response to his request for records concerning his former spouse; (3) the agency properly relied on Exemption 6 to withhold certain about plaintiff's former spouse.  

Summaries of all opinions issued since April 2015 available here.  

FOIA News: The Pentagon’s use of FOIA is flawed. Now it wants to make it even stricter.

FOIA NewsKevin SchmidtComment

The Pentagon’s use of FOIA is flawed. Now it wants to make it even stricter.

By Dan Lamothe, Washington Post, August 24, 2016

A wide-ranging group of government transparency advocates asked Congress on Wednesday to block new changes to the Freedom of Information Act requested by the Defense Department, saying that approving them would allow the Pentagon to “excuse itself from the hard fought and necessary reforms.”

The letter, signed by organizations ranging from Human Rights Watch to the National Press Club and released by the Project On Government Oversight, said that language in the Senate version of the proposed 2017 National Defense Authorization Act would provide the military with a new exemption to FOIA that is overly broad and potentially easy to abuse.

The proposal would give the Pentagon the ability to withhold information about unclassified tactics, techniques and procedures used by the Armed Forces. It’s so broad, the letter argues, “it could allow DoD to withhold almost any unclassified document at all related to Defense Department operations and could be used to justify concealing just about any material DoD creates.”

Read more here.

Read the coalition letter here.

Court opinions issued Aug. 18 & 19, 2016

Court OpinionsAllan BlutsteinComment

Aug. 19, 2016

Gahagan v. U.S. Citizenship & Immigration Servs. (E.D. La.) -- concluding that: (1) referring record is not per se improper, but that ICE did not justify withholding four pages that USCIS referred to ICE; (2) the declaration of the U.S. Customs and Border Patrol failed to account for two withheld pages; (3) CPB and USCIS demonstrated that they conducted legally adequate searches; (4) USCIS was required to disclose duplicate records subject to authorized redactions; and (5) USCIS performed a reasonable segregability analysis for two of three disputed exhibits.

Aug. 18, 2016

People for the Ethical Treatment Animals v. HHS (D.D.C) -- ruling that the Centers for Disease Control and Prevention properly relied on Exemption 4 to withhold four categories of information concerning the importation of animals, but that plaintiff was entitled to the names of the species of animals imported and to all five categories of information submitted by three companies that did not object to disclosure.  

Summaries of all opinions issued since April 2015 available here.  

FOIA News: CFPB to amend FOIA regulations

Allan BlutsteinComment

The Consumer Financial Protection Bureau has proposed amendments to its Freedom of Information Act regulations, as outlined in a notice published today in the Federal Register.  By this same notice of proposed rulemaing, CFPB seeks to amend its Touhy regulations, as well as its Dodd-Frank Act rules concerning the protection of confidential information.  Comments must be received on or before October 24, 2016.

Q&A: A gender bender from the Land of Lincoln

Q&AAllan BlutsteinComment

Q. I am curious about the gender of interviewed candidates for leadership roles in a local school district.  Is this protected under exemption 6?

A.  Exemption 6 refers to the personal privacy exemption of the federal FOIA, which is not applicable to a local district. The Illinois FOIA, however, contains a similar privacy exemption in section 7(1)(c).  In my view, a plausible argument can be made that disclosure of the requested records would serve the public interest by shedding light on the school's hiring practices.  But the school district must also examine whether disclosure could tend to identify any rejected candidates, whose personal privacy interests are more than minimal.  Although I am not in a position to know whether disclosing the information you seek could be used to identify any rejected candidate, one study has shown that 87% of the U.S. population is identifiable by three items alone:  date of birth, gender, and zip code:  

FOIA News: PETA Can't Snag Primate Exporter Names

FOIA NewsKevin SchmidtComment

PETA Can't Snag Primate Exporter Names

By Rose Bouboushian, Courthouse News Service, August 22, 2016

A federal judge ruled that PETA can obtain the names of primate species imported to the United States for what it calls "painful and terrifying experiments," but not the names of exporters or airlines.

People for the Ethical Treatment of Animals submitted a Freedom of Information Act request to the Department of Health and Human Services Centers for Disease Control and Prevention (CDC) in May 2014.

PETA sought all records submitted to the agency on prevention of the introduction, transmission, and spread of communicable diseases from nonhuman primates imported into the United States since May 2013.

Read more here.