FOIA News: HUD Corrects FOIA Regulations

The Department of Housing and Urban Development published a correction to its January 12, 2017 final rule implementing new FOIA regulations in today's issue of the Federal Register.  Specifically, the agency is correcting its inadvertent exclusion of three of the nine statutory FOIA exemptions, and its inclusion of a duplication exemption.  HUD is also making other minor technical changes.  The correction is effective immediately.

Court opinions issued May 8, 2017

Widi v. McNeil (D. Me.) -- reluctantly ordering EOUSA to perform segregability analysis on four pages of attorney work product documents and to clarify the nature of certain documents withheld under Exemption 7(C), but otherwise denying plaintiff's request for reconsideration.

Cameranesi v. U.S. Dep't of Def. (9th Cir.) -- in a two-to-one decision, affirming the district court's ruling that names of foreign students and instructors at the Western Hemisphere Institute for Security Cooperation (WHINSEC) are exempt from disclosure under Exemption 6.

Summaries of all opinions issued since April 2015 available here.

FOIA News: Government Watchdog Groups Say Congressman's FOIA Letters Set "A Troubling Precedent"

Government Watchdog Groups Say Congressman's FOIA Letters Set "A Troubling Precedent"

By Mary Ann Georgantopoulos, Buzzfeed News, May 9, 2017

A group of government watchdogs sent a letter to Congressman Jeb Hensarling Tuesday afternoon urging him to rescind the letters he sent government agencies informing them about Freedom of Information guidelines.

Hensarling, a Republican from Texas, sent letters in April to the heads of several federal agencies the House Financial Services Committee oversees, declaring that communications and documents produced between the two offices will remain in the committee's control and will not be considered "agency records" — therefore exempt from Freedom of Information Act (FOIA) requests.

Twenty organizations — including the American Civil Liberties Union, the Project on Government Oversight, and the Campaign Legal Center — signed on to a letter calling Hensarling's actions "a troubling precedent."

Read more here.

FOIA News: TRAC Challenges ICE's Abrupt Change in Disclosure Practices

TRAC Challenges ICE's Abrupt Change in Disclosure Practices

Transactional Records Access Clearinghouse (TRAC), May 9, 2017

The Transactional Records Access Clearinghouse (TRAC) has filed a suit under the Freedom of Information Act (FOIA) charging Immigration and Customs Enforcement (ICE) with unlawfully withholding records related to ICE's immigration enforcement actions and its interaction with other law enforcement agencies.

At issue are ICE's use of detainers. These are requests from ICE to federal, state, and local law enforcement agencies to hold immigrants in their custody and to turn them over to ICE for possible deportation. Under President Trump, the agency announced that it was making stepped up usage of detainers a cornerstone of its immigration enforcement strategy. The agency further threatened local jurisdictions with the withholding of federal funds if they failed to comply with ICE detainers.

Read more here.

FOIA News: FOIA Backlog Skyrockets at U.S. Citizenship and Immigration Services

FOIA Backlog Skyrockets at U.S. Citizenship and Immigration Services

The FOIA Project, May 8, 2017

The backlog of unprocessed FOIA requests to the U.S. Citizenship and Immigration Services (USCIS) continues to climb. In just a two-year period, the backlog of unanswered FOIA requests has tripled, climbing from 17,998 at the end of December 2014 to 46,550 at the end of December 2016. See Figure 1.

This means that countless requesters – including reporters, scholars, and those subject to immigration actions – are not getting the information they need to check against unlawful actions and to better hold the government accountable to the governed.

Read more here.

FOIA News: 14 Years Later, BOP Settles FOIA Lawsuit

Fourteen Years After Being Sued, Bureau of Prisons Finally Settles FOIA Lawsuit

Tim Cushing, TechDirt, May 9, 2017

A little less than two years ago, we covered Prison Legal News' FOIA lawsuit against the Bureau of Prisons. While we're aware litigation is seldom a swift process, PLN's ongoing lawsuit was particularly epic: twelve years after filing its initial requests for records covering a period from 1996-2003, the DC Appeals Court reversed the lower court's decision in favor of the US BOP and instructed it to order the government to hand over the requested records to PLN.

Two years after that ruling -- fourteen years after PLN sued -- the government is finally settling the case. The government Taxpayers will be paying out nearly a half-million dollars for more than a decade of government stonewalling and obfuscatory litigation.

Read more here.

FOIA News: The next front in the FOIA War: Congress blocking disclosure of its dealings with the Executive Branch

The next front in the FOIA War: Congress blocking disclosure of its dealings with the Executive Branch

By Ryan Mulvey, The Hill, May 8, 2017

Presidential interference with public access to politically sensitive agency records has been an ongoing fight that seems unlikely to end anytime soon, and now it appears Congress has decided to get into the game.  My organization, Cause of Action Institute (“CoA Institute”), has long been at the forefront of fighting against unlawful obstruction of the Freedom of Information Act (“FOIA”).  Last year, we filed a lawsuit against the Office of the White House Counsel to end the practice of “White House equities” review, which results in the delay of responses to FOIA requests that the administration deems politically embarrassing.  With that lawsuit still ongoing, Congress has taken a page from the White House’s playbook to keep records of its dealings with agencies hidden from public view, too.

BuzzFeed reported last week that Financial Services Committee Chairman Jeb Hensarling (R-Texas) sent a letter to the Treasury Department that directed the agency to treat all records exchanged with the committee as “congressional records” not subject to the FOIA.  Specifically, Hensarling claimed that any communications to the agency, and any “documents created or compiled” by Treasury “in connection with any responses” to Congress, could not qualify as “agency records,” regardless of whether they included a “legend” indicating how they could be used.  The chairman further claimed that all such records would be “subject to the absolute protections of the Speech or Debate Clause of the Constitution.”  Other sources indicate that Hensarling sent similar letters to other agencies, including the Consumer Financial Protection Bureau and the Federal Deposit Insurance Corporation.

Read more here.

FOIA News: Comptroller of Currency, CFPB, & Nat'l Credit Union agree to protect correspondence with House committee

These Federal Agencies Agreed To Conceal Their Communications From The Public

They are responding to a letter sent from Congressman Jeb Hensarling, a Republican from Texas, who chairs the House Committee on Financial Services.
 
Mary Ann Georgantopoulos, BuzzFeed News, May 8, 2017

At least three federal government agencies have agreed to seemingly conceal official communications with a congressional committee, following letters sent last month by the chairman of the House Committee on Financial Services.

Congressman Jeb Hensarling, a Republican from Texas, sent letters in April to the heads of federal agencies his committee oversees, declaring that communications and documents produced between the two offices will remain in the committee's control and will not be considered "agency records" — therefore exempt from Freedom of Information Act requests.

The Office of the Comptroller of the Currency, the Consumer Financial Protection Bureau and the National Credit Union Administration all responded to Hensarling's letter agreeing to decline requests to release documents if requested under FOIA.

Read more here.

FOIA News: Group sues for Sally Yates' Justice Department emails

Group sues for Sally Yates' Justice Department emails

By Josh Gerstein, Politico, May 8, 2017

A conservative watchdog group is suing for access to Sally Yates' emails from her brief but eventful tenure as acting attorney general during the early days of the Trump administration.

Judicial Watch filed the Freedom of Information Act lawsuit in federal court in Washington Friday, seeking copies of Yates' Justice Department email traffic from January 20, 2017 through January 31, 2017—one day after she was fired by President Donald Trump for refusing to defend his travel ban executive order.

The emails could also shed light on the bigger controversy that has enmeshed Yates and the Trump White House: her decision to warn the president that then-national security adviser Michael Flynn was misrepresenting his contacts with Russian Ambassador Sergei Kislyak. Sources say Yates also told White House Counsel Don McGahn that Flynn was susceptible to blackmail or pressure from the Russians because the public account the White House offered was inaccurate.

Read more here.

FOIA News: GOP Chairman Warns Agencies About Requests for Records

GOP Chairman Warns Agencies About Requests for Records

Kevin Freking, Assoc. Press, May 6, 2017

WASHINGTON (AP) -- A House Republican chairman has told a dozen government agencies to exclude communications with his committee from requests made by news organizations, advocacy groups and others through the Freedom of Information Act.

In a series of letters, Rep. Jeb Hensarling of Texas said communications the agencies had with members of his panel and committee staff should not be released, arguing that it often includes sensitive and confidential information.

Read more here.