Court opinions issued Aug. 31, 2017

Davidson v. U.S. Dep't of State (D.D.C.) -- concluding that agency performed adequate search for records concerning company's request for commercial assistance with Libyan government, and that agency properly withheld certain information pursuant to Exemptions 5 and 6.

Gatson v. FBI (D.N.J.) -- finding that: (1)  agency conducted reasonable search for records concerning plaintiff and third parties, and that agency properly withheld certain information pursuant to Exemption 3, 5, 6, 7(A), 7(C), 7(D), and 7(E).

Pinson v. DOJ (D.D.C.) -- ruling that: (1) Executive Office for United States Attorneys failed to sufficiently describe its search with respect to one of plaintiff's five requests, and (2) case docket entry referencing protective order was insufficient to to prove that agency's search for public discovery materials would be futile.   

Summaries of all opinions issued since April 2015 available here. 

Court opinions issued Aug. 29, 2017

Whitson v. U.S. Forest Serv. (D. Colo.) -- determining, upon motion for reconsideration, that agency performs law enforcement functions and therefore is entitled to invoke Exemptions 7(C) and 7(E) in case involving investigation of personnel misconduct.

Pubien v. DOJ  (D.D.C.) -- concluding that Office of Professional Responsibility performed a reasonable search for records pertaining to plaintiff's complaints about an Assistant United States Attorney and that agency properly withheld certain information pursuant to Exemption 6.

Summaries of all opinions issued since April 2015 available here. 

FOIA News: TVA Issues Revised FOIA Regulations

The Tennessee Valley Authority published a final rule revising the agency's FOIA regulations in today's issue of the Federal Register.  These changes are intended to implement the FOIA Improvement Act of 2016.  The rule is effective immediately.  The TVA did not solicit public comment.

FOIA News: FBI fights public release of Trump dossier info

OPINION: FBI fights public release of Trump dossier info

Byron York, Wash. Exam'r, Aug. 31, 2017

Senate investigators have had problems getting the FBI to reveal information about the Trump dossier. They're not the only ones. Outside groups filing Freedom of Information Act requests are running up against a stone wall when it comes to the dossier.

On March 8, Judicial Watch filed a FOIA request for documents regarding the bureau's contacts with Christopher Steele, the former British spy who dug for dirt in Russia on candidate Donald Trump in the months before the 2016 presidential election. Steele's effort was commissioned by the oppo research firm Fusion GPS, which at the time was being paid by still-unidentified Democrats who supported Hillary Clinton. Just weeks before the election, the FBI reportedly agreed to support Steele's oppo project — an extraordinary action in the midst of a campaign which Senate Judiciary Committee Chairman Chuck Grassley said raised "questions about the FBI's independence from politics."

Read more here.

FOIA News: Daily Caller calls FEC FOIA process politicized

Feds Quickly Release Trump Lawyer's Emails to Liberal Group, Bury Dem Records For Years

Ethan Barton, Daily Caller, Aug. 30, 2017

A liberal news outlet waited just four months before a federal agency gave it more than 1,000 pages of a Republican’s emails, while conservative groups’ requests have been ignored for years, according to documents obtained by The Daily Caller News Foundation Investigative Group.

Records show the Federal Election Commission (FEC) reviewed more than 4,400 pages of emails related to a Freedom Information Act (FOIA) request filed by Andy Kroll, a reporter with the liberal news outlet Mother Jones. Kroll sought all emails Don McGahn sent between July 2008 through September 2013 while he was an FEC commissioner.

Read more here.

FOIA News: Muckrock addresses "still interested" letters

Some FOIA requesters are seeing an uptick in “Still Interested” letters - here’s how to deal with them

September is “Still Interested” season. Be prepared so your request keeps its place in the queue.

By Michael Morisy, Muckrock, Aug. 31, 2017

Few things can be more galling for a FOIA requester than to patiently wait on a request for years, only to be told by an agency that if they don’t respond quickly and let the agency know they’re still interested, their request will be closed out.

In the worst cases, we’ve seen requesters told they only have five days to respond - and the postmark on the envelope is after the deadline, meaning only the most psychically gifted requesters even have a chance to keep their request open.

And while we’ve seen an increase in these types of letters recently, the good news is that we haven’t seen the most aggressive worst practices that we saw a few years ago.

Read more here.

FOIA News: Cause of Action Institute Asks EPA for Report Identifying Officials Using Encryption Apps

EPA Has A Report Identifying Officials Using Encryption Apps, And This Legal Group Wants It Made Public

By Michael Bastasch, Daily Caller, Aug. 31, 2017

A public interest law firm is asking the Environmental Protection Agency (EPA) to hand over an internal report identifying employees who downloaded encrypted messaging apps on their mobile phones.

“Information on how many employees downloaded Signal onto their work phones is vital for the public to understand how widespread this problem may be at the agency,” Ryan Mulvey, counsel at the right-leaning Cause of Action Institute (CoA), told The Daily Caller News Foundation.

CoA’s latest Freedom of Information Act request is part of their months-long investigation to find out how many EPA staffers are using smartphone messaging apps to hide their communications from the Trump administration.

Read more here.

FOIA News: A Reminder on the Use of Still Interested Letters

A Reminder on the Use of Still Interested Letters

Nat'l Archives & Records Admin., The FOIA Ombudsman, Aug. 30, 2017

As the end of Fiscal Year (FY) 2017 approaches, we understand that agencies face increased pressure to close old requests and reduce their backlogs. This is also a good time to remind agencies about how to ensure their efforts comply with U.S. Department of Justice (DOJ) guidance and best practices.

As we have talked about several times on this blog, the use of “still interested” letters to administratively close FOIA requests is often a sore point for requesters – particularly when the agency’s response to the request has been significantly delayed and the agency provides the requester with very little time to respond. On July 2, 2015, the Office of Information Policy (OIP) at DOJ issued guidance aimed at limiting the use of “still interested” letters, and addressing some of requesters’ frustrations with the practices.

Read more here.

FOIA News: FBI Refuses to Disclose Clinton Files, Citing Lack of "Public Interest"

FBI refuses to release Hillary Clinton files, says lawyer did not demonstrate the 'public's interest in the disclosure'

Many Mayfield, Wash. Exam'r, Aug. 29, 2017

The FBI turned down a lawyer's request for the release of FBI files on Hillary Clinton, faulting the lawyers' documents for not providing enough proof "that the public interest sought is a significant one," according to multiple reports Tuesday.

The FBI killed the request made by attorney Ty Clevenger, who filed a Freedom of Information Act request earlier this year to obtain information relating to the investigation into Clinton's emails.

"You have not sufficiently demonstrated that the public's interest in disclosure outweighs personal privacy interests of the subject," Hardy said to Clevenger in a letter on Monday. "It is incumbent upon the requester to provide documentation regarding the public's interest in the operations and activities of the government before records can be processed pursuant to the FOIA."

Read more here.

Court opinions issued Aug. 28, 2017

Yagman v. Pompeo (9th Cir.) -- reversing district court's dismissal after concluding that plaintiff had requested records and not merely asked a question about CIA personnel or affiliates that engaged in torture.  Although the Circuit agreed with the agency that request was too vague, it remanded the case to the district court with instructions to allow plaintiff to reframe his request. 

Energy & Env't Legal Inst. v. U.S. Dep't of State (E.D. Va.) -- ruling that plaintiffs were precluded from filing separate summary judgment motions and that agency properly withheld disputed emails pertaining to environment pursuant to Exemptions 1, 5, and 6.  

Summaries of all opinions issued since April 2015 available here.