Court opinions issued Sept. 22, 2016

Sept. 22, 2016

Wadelton v. Dep't of State (D.D.C.) -- granting government's renewed motion for summary judgment after concluding that the agency's supplemental searches were adequate and that its withholdings were proper under Exemption 5 (attorney work product and deliberative process privilege). 

The James Madison Proj. v. DOJ (D.D.C.) -- granting summary judgment to government on all but one count concerning requests for records about the book No Easy Day: The Firsthand Account of the Mission that Killed Osama Biden Laden.  Of note, the court held that plaintiff's fax confirmation page was insufficient evidence to counter the U.S Navy's sworn declaration that it had never received plaintiff's request.  

Ford v. DOJ (D.D.C.) -- determining that the FBI and the Executive Office for United States Attorneys conducted reasonable searches for records concerning plaintiff's bank robbery conviction, and that the agencies properly withheld certain information under Exemptions 3, 7(C), 7(D), and 7(E).

Scholl v. Various Agencies of the Fed. Gov't (D.D.C.) -- dismissing suit because plaintiff had waived his right to obtain the requested records as a condition of two plea agreements. 

Summaries of all opinions issued since April 2015 available here.  

Court opinions issued Sept. 21, 2016

Gabrion v. U.S. Dep't of Justice (S.D. Ind.) -- holding that the Federal Bureau of Prisons properly relied on Exemptions 6, 7(C), 7(E), and 7(F) to withhold certain records concerning plaintiff, a death row inmate who sought records concerning his prison custody. 

Isiwele v. U.S. Dep't of Health & Human Servs. (D.D.C.) -- ruling that: (1) the Centers for Medicare & Medicaid Services conducted an adequate search for records concerning certain Medicare claims and that the agency properly withheld certain records pursuant to Exemption 6 & 7(C); and (2) the Executive Office for United States Attorneys performed a reasonable search for personnel records of certain employees and that the agency properly withheld those records pursuant to Exemption 6.

Lewis v. Dep't of the Army (S.D. Ga.) -- dismissing claim for injunctive relief because plaintiff received all requested documents; dismissing claim for $1 million damages because FOIA does not permit monetary awards; and dismissing request for the appointment of Special Counsel because none of the statutory requirements were met (5 U.S.C. § 552(a)(4)(F)(i)).

Summaries of all opinions issued since April 2015 available here.  

Court opinions issued Sept. 20, 2016

Sea Shepherd Conservation Soc'y v. IRS (D.D.C.) -- finding that all but one of the agency's searches for records concerning plaintiff was adequate; that the agency's Glomar response concerning whistleblower records was improper because the agency had already acknowledged existence of records; and that the agency properly invoked Exemption 3 (26 U.S.C. § 6103) and Exemption 7(D).

Pike v. DOJ (D.D.C.) -- ruling that the government properly withheld an audio recording of plaintiffs in its entirety under Exemption 7(A), but that waived its right to withhold the portion of the transcript that it had placed into the public domain.

Blank Rome v. Dep't of the Air Force (D.D.C.) -- determining that the Air Force conducted an adequate search for records concerning the termination of a contract and that all but two of its redactions from three disputed documents were proper under Exemption 5.

Johnson v. FBI (E.D. Pa.) -- granting government's motion for reconsideration after determining that FBI's supplemental declarations established the propriety of the agency's withholdings under Exemptions 3, 5, 6, 7(C), 7(D), and 7(E).

Citizens for a Strong New Hampshire v. IRS (D.N.H.) -- denying plaintiff's motion for attorney's fees after concluding that plaintiff's lawsuit was not the proximate cause of agency's release of records and that plaintiff did not substantially prevail by virtue of agency's supplemental search that yield no additional records. 

Summaries of all opinions issued since April 2015 available here.  

FOIA News: OGIS and DOJ announce training sessions

The Office of Government Information Services announced today that it will host a dispute resolution training session for FOIA professionals on October 18, 2016.  The free day-long session will be at the National Archives in downtown Washington, DC, location.  Read more here. 

At the same time, the Department of Justice's Office of Information Policy unveiled a four-course training schedule for the first quarter of fiscal year 2017:  (1) Annual FOIA Report Refresher Training, October 11, 2016;  (2) Freedom of Information Act Litigation Seminar, October 24, 2016;  (3) Introduction to the Freedom of Information Act, November 7, 2016; and (4) Chief FOIA Officer Report Refresher Training, December 12, 2016.  Read more here.  

FOIA News: State Dep't FOIA office remains understaffed, according to court filing

State Dept. slow to hire open records staffers despite flood of requests

By Julian Hattem, The Hill, Sept. 21, 2016

The State Department has faced a deluge of open records requests and lawsuits in recent months, many of them stemming from former Secretary Hillary Clinton’s use of a private email server throughout her tenure at the department.

But despite the demands, the department has been slow to hire new staffers, according to a court filing that was made as part of an open records lawsuit launched by the Republican National Committee (RNC).

This year, the State Department has been authorized to hire 25 new full-time staffers to work on processing requests under the Freedom of Information Act (FOIA).

But only one has been hired, Obama administration lawyers disclosed in their filing this week. 

And only six other postings have been advertised on the government’s official jobs portal, suggesting that 18 of the openings have not even been made public.

Read more here.

Q&A: Carry me home to Virginia

Q.  Does the FOIA apply to homeowners associations in Virginia?

A.  An HOA is not likely to be subject to Virginia's FOIA, which applies to public (not private) bodies.  Similarly, the federal FOIA applies to government agencies, not private entities.  Please note that Virginia real estate laws might provide access to certain HOA records.  We can only recommend that you consult with a real estate lawyer licensed in Virginia for authoritative legal advice.    

FOIA News: Pentagon IG proactively disclosing reports

Pentagon’s IG moves to practice of disclosure-by-default

By Jared Serbu, Federal News Radio, Sept. 19, 2016

Careful watchers of the Defense Department Inspector General’s website will have noticed that over the last few months, the IG has been posting public summaries or redacted versions of its classified or “for official use only” reports — sometimes on the same day the full versions are released to the folks with security clearances.

Records management nerds know this practice as “proactive disclosure,” and under the FOIA Improvements Act, it’s something all agencies are supposed to do if they’ve gotten a request for the same records at least three times.

The DoD IG deserves credit for going one step further via a newly published policy that requires its staff to turn even its classified reports into a publicly-releasable format if doing so is at all possible —  without waiting for anyone to ask for them via the Freedom of Information Act.

Read more here.

FOIA Focus: James Valvo, Counsel and Senior Policy Advisor, Cause of Action Institute

Q.  You were recently selected to serve on the National Archives and Record Administration’s FOIA Advisory Committee.  What do you hope to accomplish on the Committee?

A.  The FOIA Advisory Committee is an opportunity for the requester community and agency staff to connect with each other and learn about the struggles each has when it comes to working under the statute.  Our goal is that by working together and sharing information we can craft solutions that will benefit both sides of the FOIA equation.  There are several elephants in the room, including the ever-increasing volume of requests, finite agency budgets, and agency failure to comply with statutory deadlines.

Personally, I’d like to find ways to both improve the administration of FOIA while introducing mechanisms to hold agencies accountable for decisions they make that are unsupported by the statute or caselaw.

Q.  If you could change anything about the FOIA, what would it be and why?

I’d like to get more information from the agency in the final determination letter.  As a requester, it is often difficult to know whether the agency’s decisions on fees, sufficiency of the search, or application of redactions is proper.  That leaves the requester in the untenable position of appealing in the hopes of winning or living with an unclear final determination. 

For example, agencies sometimes deny a request for a fee waiver or fee classification without providing information on how the requester has come up short.  Similarly, a description of the search, including names of records custodians and offices searched would allow requesters to better understand how the agency went about looking for the requested records.

Q.  What is the most unusual FOIA response that you have ever received? 

A.  The most unusual responses are usually errors by the FOIA officers, which are quickly reversed with a phone call or administrative appeal.  For example, I remember learning about a response were the requester was told that an entire class of records (Inspector General reports) were categorically not subject to FOIA.  A short email to the agency head quickly reversed this improper position.

Q.  What suggestions would you give to new FOIA requesters?

A.  Describe the records you’re seeking as specifically as possible.  This may seem like obvious advice but I often come across very broad requests that don’t really explain precisely what they’re looking for.  Use plain English and give as much detail as possible; don’t try to hide the ball.  Try to put yourself in the position of the FOIA officer receiving the request.  How would you go about beginning a search for the records you’re seeking?  And for the lawyers out there, you’re not writing a discovery request.

Q.  What is your view on the government’s “release to one, release to all” project?

Release to one, release to all is an interesting policy agencies may soon take to post nearly all of their released FOIA productions on their websites.  Agencies processed more than 700,000 FOIA productions last year.  If in the future most of their productions go online we will see a dramatic increase the amount of information available to the public.  That is a good thing.  

But of course, the devil is in the details.  It will be important that agencies post the information in a manner that is easily searchable and able to discovered by individuals that may be seeking that information in the future.  If the agencies only post a series of PDF files with little information about their contents, this policy may do little good.  However, if agencies take the time to include tags or other descriptions of the types of information in the files, this policy may make a dent in the volume of future FOIA requests and increase the public's understanding about government.   

I also believe that the Department of Justice’s Office of Information Policy is taking the right approach by acknowledging that different agencies have different capacities and restraints.  Allowing each agency to steadily make progress toward full adoption of release to one, release to all is the right approach. 

Where did you go to school and what did you study?  

I went to American University in Washington, DC for both undergrad and law school.  My degrees are in political science and law.

What are your favorite sports teams?

I grew up in Michigan so I'm a fan of the Tigers, Lions, Red Wings, and University of Michigan.  Go Blue!

Court opinion issued Sept. 16, 2016

Eil v. DEA (D.R.I.) -- ordering the agency to release all the exhibits introduced by the federal government in the criminal trial of Dr. Paul H. Volkman, except for: (1) certain "highly personal" third-party information "of no consequence to the trial or conviction of Dr. Volkman," (2) identifying information of criminal investigators and DEA numbers; and (3) trial exhibit numbers.

Summaries of all opinions issued since April 2015 available here.  

Q&A: Hi, hi, hey . . . the Army's on its way

Q.   I am having trouble figuring out how to request my father's military records.  I went to the foia.gov site and it's a bitch to navigate.  Sometimes I'd press on a button and nothing would happen...couldn't understand exactly how to find where I needed to go.  I put U.S. Army in a search bar and the Army websites would come up.  I was told I could make requests from the FOIA to search for the records, but how?

A.  Here is the standard request form for military records:  http://www.archives.gov/research/order/standard-form-180.pdf.  The instructions on the last page indicate where to submit your request, which depends upon the branch of service and time of service.