Court opinions issued Sept. 9, 2016

Am. Farm Bureau Fed'n v. EPA (8th Cir.) -- reversing district court's decision that plaintiffs lacked standing to bring a "reverse" FOIA suit to prevent disclosure of certain information about their concentrated animal feeding operations, and that the information at issue was not exempt from mandatory disclosure under Exemption 6.  In analyzing the applicability of Exemption 6, the Eighth Circuit rejected the EPA's argument that the information's availability through various other public sources diminished the plaintiffs' privacy interests. 

Although a requester might be able to find the information he seeks on a website or in a State's publicly available files, the agency's comprehensive listing . . . substantially increases the public visibility and accessibility of that information. The agency's release of the complete set of data on a silver platter, so to speak, eliminates the need for requesters and others to scour different websites and to pursue public records requests to create a comprehensive database of their own.  If the information were so easily accessible, then it is passing strange that the parties would engage in protracted and expensive litigation to secure it through the Freedom of Information Act.  See Reporters Comm., 489 U.S. at 764.

The Eighth Circuit remanded the case for the district court to determine whether EPA is prohibited by any independent source of authority from making a discretionary release of the information at issue.

Brozzo v. U.S. Dep't of Educ. (N.D.N.Y.) -- ruling that the agency did not show that student loan records possessed by another entity were not "agency records" in light of agency regulation that authorized agency to copy and inspect them. 

Summaries of all opinions issued since April 2015 available here.  

FOIA News: Court approves timetable for release of Clinton's schedules

Judge OKs plan to release Clinton schedules before election

By Josh Gerstein, Politico, Sept. 9, 2016

A federal judge has approved a plan for the State Department to finish releasing its collection of Hillary Clinton's schedules during her tenure as secretary of state before the November election.

U.S. District Court Judge Richard Leon signed off on a joint proposal from State and The Associated Press to complete production of Clinton's schedules and so-called mini schedules by October 17, with an interim batch due by September 29.

In exchange for accelerating the processing of the schedules, AP agreed to defer receiving records about a top aide to Clinton, former Deputy chief of staff Huma Abedin. State will resume processing those records after the schedules are worked through the system.

Read more here. 

Court opinions issued Sept. 7, 2016

Shapiro v. Dep't of Justice (D.D.C.) -- deciding that (a) the FBI performed an adequate search for records pertaining to Aaron Swartz; (b) the agency's explanation for its use of Exemption 3 to withhold federal grand jury records was conclusory; and (c) the agency provided insufficient information to permit the court to determine whether disclosure of certain law enforcement records would cause harms protected by Exemption 7(E).

Attkisson v. U.S. Dep't of Justice (D.D.C.) -- concluding that the FBI conducted an adequate search for records concerning plaintiff Sharyl Attkinson.

Summaries of all opinions issued since April 2015 available here.  

FOIA News: GAO publishes report on FOIA litigation costs

On September 8, 2016, the U.S. Government Accountability Office (GAO) published a report that examined FOIA litigation-related costs incurred by federal agencies for lawsuits in which the plaintiffs substantially prevailed.  Of 1,672 lawsuits decided between 2009 and 2014, GAO identified 112 lawsuits in which the plaintiff substantially prevailed.  GAO reviewed cost data provided by the Department of Justice and other agencies, but it was not able to fully determine the litigation-related costs for these 112 lawsuits. 

Read the GAO report here.  

FOIA: National Security Archives' Nate Jones weighs in on Vox and government emails

Against Transparency?

By Nate Jones, Unredacted, Sept. 7, 2016

His argument that “Email isn’t mail” –along with being incorrect– is also not novel.  It is the exact argument made by the Reagan Administration to the National Security Archive as it attempted to delete all all traces of its emails before turning the keys to the White House over to the H.W. Bush Administration in January 1989.  Attempting to justify deletion of the email, the responsible official at NARA told the National Security Archive that federal emails were akin to telephone messages slips, not worthy for preservation.  Fortunately, for all journalists not named Yglesias, U.S. District Court judge Barrington D. Parker rejected this assertion, ruled for the Archive and against Reagan’s acting Attorney General John Bolton (yes, that one), and granted the restraining order that preserved the Reagan Administration’s emails from deletion.  After years of legal battles with both Democratic and Republican administrations, the National Security Archive eventually won the preservation of several hundred thousand White House emails from the Reagan presidency, nearly a half million from the Bush-41 term, 32 million from Clinton, and an estimated 220 million from Bush-43.  Our settlement with the Obama administration ensures that all of his White House emails (along with Blackberry messages) will also be preserved and per the Presidential Records Act, will be available for FOIA requests as early as five years after he leaves office.

So, to be clear, Yglesias’s argument is not a new, provocative idea.  There has been much discussion about the topic, and there is clear law and court precedent that emails (and text messages, and Slack messages, and Gchats) are firmly established federal records. It’s the law of the land.  In fact, the US National Archives is currently completing work to ensure that each and every federal agency has a system in place by December 2016 to  “manage all email records in an accessible electronic format” –so that they can more effectively be preserved and released  in response to FOIA requests.

Read more here.

FOIA News: Congressman Chaffetz blames Clinton for State Dep't FOIA delays

Republican accuses Clinton of State Department records mess

By Richard Lardner, The Associated Press, Sept. 8, 2016

WASHINGTON (AP) — A top House Republican is accusing Hillary Clinton of making a "mess" of records management at the State Department that has frustrated requests for information from Congress, the media and the public.

Congressman Jason Chaffetz of Utah chairs the House Oversight and Government Reform Committee.  Chaffetz said at a hearing Thursday that Clinton "conveniently created" a chaotic system that is costing millions of dollars to repair.

Chaffetz pointed out that The Associated Press had to go to court to try to obtain detailed planning schedules from Clinton's four-year tenure as secretary of state.

Patrick Kennedy is undersecretary of state for management. Kennedy says the agency is improving its records management but continues to struggle with the heavy volume of open-records requests that it gets.

Hearing testimony and video available here. 

FOIA News: Muckrock's Michael Morisy and Shadowproof's Kevin Gosztola respond to Vox

Michael Morisy: Making government officials’ emails open to scrutiny is key to accountability

By Michael Morisy, Nieman Lab, Sept. 7, 2016

If you read any accountability journalism, it’s amazing how often emails received through public records requests and the Freedom of Information Act provide a pivotal role. If anything, stories based on public records stories tend to be the antidote to the “hot take” culture that Yglesias worries is corrupting good government.

Plus, even government phone calls are often recorded and provide important accountability. One great example, via the Associated Press’ Ted Bridis: How a No Fly Zone over Ferguson — originally stated as a public safety measure — was actually created to keep the media away.

Making emails and other modern communication channels exempt from FOIA means that most of these stories would be impossible, or at least much weaker. Instead, reporters would have to rely on citing “according to sources,” which leaves their reporting vulnerable to he-said-she-said back and forth that inevitably dulls its impact.

The other half of Yglesias’ argument, that too much oversight impairs government work, also misses the mark. He’s absolutely right that government employees need the ability to brainstorm and speak candidly. This is what the B(5) exemption, phone calls, and in-person meetings let them do. But it’s equally important that government officials get used to working in public — aware that part of their job is being able and ready to share, explain, and occasionally defend their work.

Read more here.

The Derangement of Journalists Against Transparency

By Kevin Gosztiola, Shadowproof, Sept. 7, 2016

Vox’s Matt Yglesias recently outed himself as a Journalist Against Transparency or a jatter. He argued, very incorrectly, that emails and other electronic records produced by “conversational” communication tools should not be subject to FOIA.
…
The problem is jatters like Yglesias do not support the journalism being done around Hillary Clinton’s emails. He favors increasing restrictions on what government records can be released to journalists and the public because he identifies with a candidate, who has been dogged by the fact that she tried to keep her emails out of the purview of FOIA when she was the Secretary of State.

Read more here.

Court opinions issued Sept. 6, 2016

Hiken v. Dep't of Def. (9th Cir.) -- vacating the district court's fee award after finding that the court failed to consider plaintiff's submission of evidence concerning the prevailing hourly attorney's rates from 2006 to 2008.  A dissenting panelist opined that the plaintiff's notice of appeal failed to actually dispute the fee award and that the district court acted within its discretion in calculating the amount.  

Marino v. Dep't of Justice (D.D.C.) -- determining that multiple DOJ components conducted adequate searches in response to pro se prisoner's requests and that the government properly withheld certain records pursuant to Exemption 5, 6, 7(C), 7(D), and 7(F). 

Nat'l Sec. Counselors v. Cent. Intelligence Agency (D.D.C.) -- granting summary judgment to six intelligence agencies   on three claims that remained from dozens of claims brought by plaintiff in connection with its numerous FOIA requests.

Summaries of all opinions issued since April 2015 available here.  

FOIA News: Additional reaction to Vox concerning government email

Why We Need More Access to Bureaucrats’ Emails, Not Less

The Freedom of Information Act is crucial for government accountability.

By C.J. Ciaramella, Reason, Sept. 7, 2016 

I've written more than 100 Freedom of Information Act (FOIA) requests over the past few years, as well as a newsletter on FOIA policy, so it caused me great pain to read the headline over at Vox on Tuesday: "Against Transparency: Government officials' email should be private, just like their phone calls."

Vox's Matt Yglesias writes that, in an age of casual email, the problem with making government officials' emails subject to public records by default "is that in addition to serving as a deterrent to misconduct, it serves as a deterrent to frankness and honesty."

The solution, Yglesias says, is to make emails off-limits to public record searches, much like phone calls.

"Government secrecy can be, and in some ways is, out of control," he writes. "But a private conversation to facilitate a frank exchange of ideas is not the same as a secret bombing campaign in Cambodia. We need to let public officials talk to each other—and to their professional contacts outside the government—in ways that are both honest and technologically modern."

Read more here. 

FOIA News: NARA's Open Government Plan available for comment

National Archives’ Open Government Plan 4.0 Open for Comment

Office of Government Information Services Blog, Sept. 7, 2016

As the Archivist of the United States announced earlier this week, you can now review and comment on  the National Archives and Records Administration’s Open Government Plan 4.0 on Github. The plan covers steps the National Archives intends to take over the next two years to strengthen open government within our agency and across the Federal government.

The plan discusses our continued work leading and supporting the 2016-2018 term of the Freedom of Information Act (FOIA) Advisory Committee. As discussed in a fact sheet released by the White House marking the President’s signature of the FOIA Improvement Act of 2016 and in remarks by U. S. Chief Technology Officer Megan Smith and Office of Management and Budget Director Shaun Donovan during the committee’s kick-off meeting, the Committee is charged with looking broadly at the challenges that agency FOIA programs will face in light of an ever-increasing volume of electronic records; the committee also is tasked with charting a course for how FOIA should operate in the future.

Read more here.