Manna v. U.S. Dep't of Justice (D.D.C.) -- determining that the FBI properly invoked Exemptions 6 and 7(C) to withhold or to refuse to confirm or deny the existence of records about a government informant who was plaintiff's associate in the Genovese Crime Family.
Summaries of all opinions issued since April 2015 available here.
By Brad Heath, USA TODAY, Sept. 16, 2016
Three news organizations, including USA TODAY’s parent company, filed a lawsuit Friday seeking information about how the FBI was able to break into the locked iPhone of one of the gunmen in the December terrorist attack in San Bernardino.
The Justice Department spent more than a month this year in a legal battle with Apple over it could force the tech giant to help agents bypass a security feature on Syed Rizwan Farook's iPhone. The dispute roiled the tech industry and prompted a fierce debate about the extent of the government’s power to pry into digital communications. It ended when the FBI said an “outside party” had cracked the phone without Apple’s help.
The news organizations’ lawsuit seeks information about the source of the security exploit agents used to unlock the phone, and how much the government paid for it. It was filed in federal court in Washington by USA TODAY’s parent company, Gannett, the Associated Press and Vice Media. The FBI refused to provide that information to the organizations under the Freedom of Information Act.
Read more here,
By Sarah Westwood, Washington Examiner, Sept. 16, 2016
Newly disclosed correspondence between State Department officials in 2013 suggest the agency was aware of 17 Freedom of Information Act requests for Hillary Clinton's emails more than a year before asking the former secretary of state to hand over records from her server.
The email chain, which was in a batch of documents obtained by conservative-leaning Judicial Watch, revealed that a FOIA officer sought "a copy of all requests related to Secretary Clinton's emails" in Aug. 2013 and pressed colleagues about specific requests from Gawker, Citizens for Responsibility and Ethics in Washington and Judicial Watch itself.
The CREW records request, which sought documentation in 2012 of all the email accounts Clinton used during her tenure, has received renewed attention amid emails and inspector general findings that indicate the request was improperly dismissed by officials who knew of Clinton's private accounts but did not disclose them.
Read more here.
Elec. Privacy Info. Ctr. v. DEA (D.D.C.) -- finding that DEA conducted a reasonable initial search for agency privacy assessments, but that its supplemental effort to locate four missing assessments based on a "clear and certain lead" was insufficient.
Inclusive Cmtys. Project v. HUD (N.D. Tex.) -- rejecting agency's reliance on Exemption 6 to withhold requested data on House Choice Vouchers. Although the court accepted HUD's argument that an invasion of privacy may theoretically occur through a chain of events following disclosure ("derivative-use theory"), the court found that the agency failed to demonstrate the likelihood of such harm in this case. Even if the agency had made the necessary causal connection, however, the court concluded that the public interest in disclosure outweighed the privacy interests at stake.
Summaries of all opinions issued since April 2015 available here.
The Farm Credit Administration (FCA) issued a final rule today that amends the agency's FOIA regulations to reflect the changes made by the FOIA Improvement Act of 2016. The FCA did not solicit or consider public comment before issuing the rule, following the same approach as the Farm Credit Insurance Corporation (FCIC) on August 30, 2016. The FCA provided the same explanation as the FCIC for bypassing public comment: "The proposed amendments are required by statute, do not involve agency discretion, and provide additional protections to the public through the existing regulations. Thus, notice and public procedure are impracticable, unnecessary, and contrary to the public interest."
Q. Does an American Legion Post in Michigan have to comply with a FOIA request for financial records?
A. The American Legion is a nonprofit veterans organization that was federally chartered in 1919. I do not believe that the American Legion qualifies as a "public body" under Michigan's FOIA or as an "agency" for purposes of the federal FOIA. You can, however, obtain the Legion's 990 Form (i.e., income tax return) directly from the organization or through Guidestar or the Internal Revenue Service.
By Editorial Board, Washington Times, Sept. 13, 2016
Mr. Kennedy is overseeing an explosion of FOIA requests that has left the department swamped with a backlog of 30,000 cases. Compliance rules require a response within 20 days but because of the backlog, the department is taking more than 500 days to answer requests. Documents pertaining to foreign governments require review for sensitive information, which can result in reclassification after the fact, a practice which Hillary argues contributed to the criticism of her handling of classified documents.
The State Department has urged Congress to exempt material dealing with foreign governments from FOIA requests to end the need to review sensitive material prior to its release. If there is anything to be learned from the slippery behavior that has plagued Foggy Bottom in the wake of Mrs. Clinton’s shoddy leadership, it’s that Americans want more transparency, not less. Most of all they want leaders who don’t lie to them.
Read more here.
Q. I am in receipt of a FOIA request where the requester is seeking a copy of the certificate list for a vacancy announcement that was posted. Please note the requester did not apply for this position. Is he eligible for a redacted copy with the list of eligibles?
A. If anyone has been hired for the position, the agency could release the name of that employee. Disclosing the name or personal identifying information of job applicants who have not been hired, however, would invariably constitute a clearly unwarranted invasion of their privacy.
By Sarah Westwood, Washington Examiner, Sept. 12, 2016
A representative of the FBI suggested to members of the House Oversight Committee during a hearing Monday that they file a Freedom of Information Act request for documents related to the bureau's investigation of Hillary Clinton's private email use.
Jason Herring, acting assistant director for congressional affairs at the FBI, argued that "the remainder of the 302s will come out through the FOIA process" when pressed by Rep. Trey Gowdy, R-S.C., to publish summaries of witness interviews, known as 302s, from the FBI's year-long probe of Clinton and her associates.
"Since when did Congress have to go through FOIA to obtain 302s?" Gowdy said. "You have given me the summary of a summary of an interview."
Read more here.
UPDATED FOIA REGULATION TEMPLATE AND GUIDANCE NOW AVAILABLE
U.S. Dep't of Justice, FOIA Post, Sept. 7, 2016
Today OIP released an updated version of its Guidance for Agency FOIA Regulations, along with an updated FOIA Regulation Template. These resources were first issued in March 2016. OIP has updated them to take into account changes made to the FOIA by the FOIA Improvement Act of 2016 and by recent court decisions.
As described in OIP’s guidance, while many of the FOIA’s requirements are contained directly in the statute and do not need implementing regulations, there are areas where the FOIA specifically requires each agency to publish regulations and still other areas where regulations are permitted. Moreover, there are aspects of FOIA administration that can be addressed in FOIA regulations as a matter of good practice.
The updates to the guidance and accompanying template for agency FOIA regulations include:
The updates also reflect recent judicial decisions of the Court of Appeals for the District of Columbia Circuit pertaining to two fee categories, representative of the news media and educational institution.
OIP encourages all agencies to consult the guidance and sample language from the template to the extent feasible as they update their FOIA regulations. OIP will continue to update these resources as needed to reflect changes in law and policy.