FOIA Advisor

Court opinion issued May 16, 2018

Court Opinions (2018)Allan BlutsteinComment

Hohman v. IRS (E.D. Mich.) -- denying plaintiff's motion for attorney's fees and costs after concluding that: (1)  agency diligently processed request and lawsuit did not cause release of records; and (2) court's order to IRS to "either make its disclosures by January 6th or attend a follow-up scheduling conference" was not a decision on the merits. 

Summaries of all opinions issued since April 2015 available here

 

FOIA News: Decision expected on Mueller's communications with media

FOIA News (2018)Allan BlutsteinComment

Exclusive: Judge to rule on release of special counsel's contacts with media

By Jonathan Easley, The Hill, May 17, 2018

A federal judge will rule next week on a Freedom of Information Act (FOIA) request from a conservative group that wants access to correspondences that special counsel Robert Mueller’s team has had with the media.

Freedom Watch founder Larry Klayman and Joseph Dugan, the lawyer representing the special counsel, will appear in Washington district court on May 24 at 10:30 a.m. for a status conference with Judge Emmet Sullivan.

The Hill viewed the relevant court filings, which are reported here for the first time.

Read more here.

Court opinion issued May 15, 2018

Court Opinions (2018)Allan BlutsteinComment

Kearns v. Fed. Aviation Admin. (D.D.C.) -- concluding that: (1) plaintiff failed to exhaust his administrative remedies regarding one request seeking records about his employment; (2) FAA properly withheld certain information from reports of investigation concerning plaintiff pursuant to Exemptions 5, 6, and (7(C), and that Privacy Act did not provide plaintiff with greater access to disputed records,

Summaries of all opinions issued since April 2015 available here

FOIA News: Feds Ask 2nd Circuit To Keep Drone Program Ruling Secret

FOIA News (2018)Allan BlutsteinComment

US Opposes Access to Secret Drone Ruling

Dam Klasfeld, Courthouse News Serv., May 15, 2018

Two years ago, the U.S. government won the right to keep information about its predator-drone program classified. It went to the Second Circuit on Tuesday to keep a portion of the court’s secret ruling redacted.

The American Civil Liberties Union believes the still-censored passage of the ruling confirms the existence of a targeted-killing program in Pakistan, a widely assumed fact that former Secretary of State John Kerry even acknowledged while in office.

Read more here.

FOIA News: Cause of Action Institute weighs in on EPA's "sensitive review."

FOIA News (2018)Allan BlutsteinComment

Politics Clouding Criticism of the EPA’s Heightened Sensitive Review FOIA Procedures

By Ryan Mulvey, Cause of Action Inst. Blog, May 14, 2018

Last week, a report from Politico revealed that the Environmental Protection Agency (“EPA”) maintains a burdensome “sensitive review” process for Freedom of Information Act (“FOIA”) requests concerning Administrator Scott Pruitt’s activities.  According to internal sources, officials within the Office of the Administrator have “reviewed documents collected for most or all FOIA requests regarding [Pruitt’s] activities[.]”  The Politico report further claims that this “high-level vetting” has increased, as compared with the policies and practices introduced during the Obama years.  “This does look like the most burdensome review process that I’ve seen documented,” argued Nate Jones from National Security Archive.

It is true that the Trump Administration has enhanced sensitive review processes at the EPA.  Other agencies have witnessed a similar expansion of sensitive review, as Cause of Action Institute’s investigation of the National Oceanic and Atmospheric Administration demonstrates.  But it would be a mistake—as I argued last December—to think that the Obama White House was any better at avoiding FOIA politicization.   The EPA has a long and terrible track record for anti-transparency behavior.  Consider the agency’s blatant weaponization of fee waivers.  According to data compiled by the Competitive Enterprise Institute, and reported by Reason and The Washington Examiner, the Obama EPA regularly denied public interest fee waivers to organizations critical of the agency’s regulatory activities and the White House’s policy agenda.  By contrast, left-leaning groups nearly always (92% of the time) received fee waivers.

Read more here.

FOIA News: CPSC transitions to electronic notification for Exemption 4 consultations

FOIA News (2018)Ryan MulveyComment

Check Your Spam Filters!: CPSC Has Automated FOIA Communications

Cheryl Falvey et alRetail Consumer Products Law, May 9, 2018

You may have received an e-mail notice this week from the CPSC about the FOIA office’s new “Electronic Manufacturer Notification Collaboration Portal.”  The main purpose of the Portal is to reduce costs by using e-mail instead of snail mail for Section 6(b) and other FOIA-related notifications. 

Generally, automation of this process shouldn’t result in any meaningful changes in the FOIA notification and objection process.  The Commission’s regulations allow firms to submit information with a request for confidential treatment.  If the Commission receives a FOIA request for information previously designated confidential, the person who previously submitted the request for confidentiality is notified of the FOIA request and the need for quick response to protect that information from disclosure.

Read more here.

FOIA News: OGIS on the ways agencies are improving FOIA compliance

FOIA News (2018)Ryan MulveyComment

Five Ways Agencies are Improving FOIA Compliance

Nat'l Archives & Records Admin., FOIA Ombudsman, May 9, 2018

As we wrote about in our Fiscal Year (FY) 2017 Annual Report, our agency compliance assessment process recognizes that there is no one-size-fits-all approach to administering FOIA—each agency’s records are unique and as such, management of the FOIA process differs. We have observed that successful FOIA programs share three general characteristics: they manage their resources appropriately; they use technology effectively; and they communicate well with requesters.

 

Based on our agency FOIA compliance assessment reports and or analysis of the results of the FOIA Questions included in the 2016 Records Management Self-Assessment Survey (RMSA), today we want to highlight a few things agencies are doing to improve the administration of their FOIA programs[.]

Read more here.

FOIA News: Write bad FOIA requests, advises Democrat researcher

Allan BlutsteinComment

What you missed from our FOIA Slack Chat with Abraham Payton

Cynthia Fernandez, MuckRock, May 9, 2018

Opposition researcher Abraham Payton joined us last Friday to discuss how his company, Due Diligence uses FOIA to investigate public figures.

Haggle

One of Payton’s top documents he requests are public officials’ emails. These types of requests are often met with resistance from FOIA officers. But even so, Payton recommends that requesters use broad and vague language that might lead to a denied request. Why? To start a conversation with the officer, if nothing else.

Dear FOIA Officer,

I am requesting copies of all incoming-and-outgoing email of John Smith (smith.john@bigcity.gov) from January 1, 2017 to present.

Sincerely, Not an Opposition Researcher

Payton said that “This is deliberately broad in order to provoke engagement,” and that [P]ublic record officers are almost always willing to negotiate and pare down the request.”

After you get denied, use your research.

Read more here.