FOIA Advisor

Q&A: The wheels of justice turn slowly

Q&A (2018)Allan BlutsteinComment

Q.  According to an acknowledgment email, the DOJ's National Security Division received our FOIA request on the 20th of July. Yet as of this time, there is no response. What are my options?

A.  The DOJ's response to your request was due within 20 business days, which by my calculation is August 17, 2018.  If "unusual circumstances" apply to your request, however, DOJ may notify you that it is taking an additional 10 business days to process your request.  Once the response deadline passes (whenever that may be), you are entitled to file a lawsuit in federal court.

Short of a lawsuit, you might consider asking NSD's FOIA public liaison for an estimated date of completion.  According to DOJ's most recent FOIA annual report, NSD takes an average of about 342 days to process "complex" requests and 31 days to process "simple" requests.  Thus, if the acknowledgment letter does not indicate which processing track your requests falls into, you should ask the NSD liaison.  

Other options include asking NARA's Office of Government Information Services for assistance.  Keep in mind, however, that OGIS cannot compel an agency to speed up a response.  Another means of prodding the agency would be to contact your Congressperson, who will then forward your concerns to the agency with a less-than-passionate request for assistance.  

FOIA News: Trump declassifies congressional memos, FBI's Glomar argument falls apart

FOIA News (2018)Ryan MulveyComment

Judge: Trump's release of dossier memos opens door to disclosures from FBI

Josh Gerstein, Politico, Aug. 16, 2018

President Donald Trump’s decision to declassify competing congressional memos about the validity of the so-called Steele dossier means the FBI has lost its authority to rebuff Freedom of Information Act requests about the bureau’s efforts to verify the report’s intelligence linking Trump to Russia during the 2016 campaign, a federal judge ruled on Thursday.

U.S. District Court Judge Amit Mehta previously blessed the FBI’s decision to refuse such FOIA requests by declining to confirm whether any records exist about aspects of its handling of the hotly contested dossier, prepared by the former British intelligence officer Christopher Steele. The judge ruled in January that Trump’s tweets about the dossier did not require the FBI and other intelligence agencies to be more responsive to public records requests on the issue.

However, Mehta said Trump’s actions in February to greenlight the release of one memo from House Intelligence Committee Chairman Devin Nunes (R-Calif.) and a separate memo from the panel’s ranking Democrat, Rep. Adam Schiff of California, left untenable the FBI’s position of resisting disclosure.

Read more here.

FOIA News: Dems threaten to sue NARA for Kavanaugh docs

FOIA News (2018)Allan BlutsteinComment

Dems threaten to sue for Kavanaugh records

By Jordain Carney, The Hill, Aug. 16, 2018

Senate Democrats warned on Thursday that they will sue the National Archives for Supreme Court nominee Brett Kavanaugh’s records if their Freedom Of Information Act (FOIA) request fails. 

Senate Minority Leader Charles Schumer (D-N.Y.) said Democrats will file a lawsuit to try to get documents, including from Kavanaugh’s time as a staff secretary to President George W. Bush, if they run into roadblocks on the FOIA. 

Read more here.

Court opinion issued Aug. 15, 2018

Court Opinions (2018)Allan BlutsteinComment

Elec. Privacy Info. Ctr. v. DOJ (D.D.C.) -- ruling that DOJ properly relied on Exemption 5 (deliberative process and presidential communications privileges) and Exemption 6 to withhold various records pertaining to "evidence-based assessment tools that seek to predict the statistical probability of an individual’s recidivism."

Summaries of all published opinions issued since April 2015 available here.

Court opinion issued Aug. 14, 2018

Court Opinions (2018)Allan BlutsteinComment

Djenasevic v. EOUSA (D.D.C.) -- determining that: (1) Executive Office for United State Attorneys and Drug Enforcement Administration performed reasonable searches for records concerning plaintiff, a convicted heroin dealer; (2) EOUSA properly withheld records pursuant to Exemption 3 (grand jury), 5 (deliberative process privilege), 6, and 7(C); (3) DEA properly withheld records pursuant to Exemption 7(D), 7(E), and 7(F).

Summaries of all published opinions issued since April 2015 available here.

 

FOIA News: Secret Service sued for Trump Jr.'s India trip docs

FOIA News (2018)Allan BlutsteinComment

Former Bay Area State Senator Sues Feds For Trump Jr. Travel Records

KPIX 5, Aug. 14, 2018

San Francisco Ethics Commission vice chair Quentin Kopp has filed a lawsuit against the U.S. Secret Service for their failure to comply to a Freedom of Information Act request regarding Donald Trump Jr.’s trip to India in February, according to a news release.

Kopp, a former state senator and superior court judge, planned a news conference Tuesday morning on the steps of the federal courthouse in San Francisco announcing the suit.

Read more here.

FOIA News: Former OMB Director and Indiana Governor argues too much "transparency"

FOIA News (2018)Ryan MulveyComment

Government 'transparency' has gone too far

Mitch Daniel, Wash. Post, Aug. 13, 2018

Dave Eggers’s 2013 novel “The Circle” depicts a world where demands for “openness” annihilate privacy and personal autonomy, creating a dystopian nightmare. Public officials in the tale try to outdo each other in going “clear” by wearing body cameras and microphones every waking moment. For most readers, the book is farfetched science fiction, but for those active in public life, Eggers’s conception doesn’t seem all that implausible.

It’s hard to determine when too much of a good thing becomes truly too much. And the more laudable the goal, the harder it generally is to reel in the excess, because any suggested retrenchment is viewed as an abandonment of the goal itself. At the risk of being misconstrued, I venture the heretical thought that we have overshot in the pursuit of governmental “openness” and “transparency.”

There’s no question that American government at all levels is better off for the open-door and open-record reforms of the past half-century. Knowing that the public is watching, public officials generally behave more responsibly in the conduct of their duties.

Read more here.

[ALB comment:  The email ship sailed away at least 25 years go.]

FOIA News: End of federal fiscal year 2018 approaching

FOIA News (2018)Allan BlutsteinComment

As of today, there are only thirty-three (33) business days left in fiscal year 2018, which concludes on September 30, 2018.  Many federal agencies will soon shift their focus from processing incoming requests to pending requests only in order to reduce their backlogs.  If an agency receives any request on or after August 16, 2018, that triggers a 10-business-day extension (that is, for "unusual circumstances"), that request will not be deemed backlogged until fiscal year 2019.  Simpler requests that are submitted on or after August 30, 2018, also will not be considered backlogged until fiscal year 2019.