FOIA Advisor

Court opinion issued Oct. 16, 2018

Court Opinions (2018)Allan BlutsteinComment

Hughes v. DOJ (N.D. Ill.) -- concluding that U.S. Marshals Service properly issued Exemption 7(C) Glomar in response to plaintiff’s request for records concerning his brother, who is alive and did not consent to disclosure; rejecting plaintiff’s personal interest in records for probate proceeding as sufficient to override subject’s privacy interests.

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

Q&A: ‘Cause you gotta have faith

Q&A (2018)Allan BlutsteinComment

Q. Are you aware of a FOIA case in the Ninth Circuit in which the agency was cited for bad faith? Or a Ninth Circuit case that defines what bad faith is for an agency search?

A. Two case might be of particular interest to you: (1) Lion Raisins, Inc. v. U.S. Dept. of Agriculture, 636 F. Supp. 2d 1081 (E.D. Cal., 2009) (noting agency’s absence of good faith with respect to its search); and (2) Powell v. United States Dept. of Justice, 584 F. Supp. 1508 (N.D. Cal. 1984) (finding that agency’s lack of good faith, among other things, warranted in camera review of disputed records).  There are innumerable FOIA cases originating from the Ninth Circuit in which courts have rejected allegations of agency bad faith.  See, e.g., Kucernak v. Federal Bureau of Investigation, 129 F.3d 126 (9th Cir. 1997); Bothwell v. Brennan, No. 13-cv-05439 (N.D. Cal. 2015).

Court opinions issued Oct. 15, 2018

Court Opinions (2018)Allan BlutsteinComment

Sieverding v. DOJ (D. Mass.) -- concluding that plaintiff failed to state claim for which relief could be granted, because plaintiff sought ratification of Office of Information Policy’s decision to remand request to EOUSA for further processing of responsive records.

Stalcup v. DOD (D. Mass.) -- on remand from First Circuit, finding that three agency offices failed to demonstrate adequacy of their searches for records pertaining to crash of TWA Flight 800 in 1996.

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

FOIA News: OIP Director Interviewed

FOIA News (2018)Allan BlutsteinComment

Taking point on FOIA

By Chase Gunter, FCW, Oct. 15, 2018

The number of Freedom of Information Act requests is at an all-time high. While the figures for this year are yet to be released, Melanie Pustay, director of the Department of Justice's Office of Information Policy, predicted the year's total for fiscal year 2018 is "going to be near a million."

"Just as more information's available, people want more," she said. "I think it's just an information-hungry age, and people are using FOIA, which I think is a great thing because it's designed to be used. It just makes challenges for the agencies to satisfy demand."

Read more here.

Court opinion issued Oct. 12, 2018

Court Opinions (2018)Allan BlutsteinComment

Gov't Accountability Project v. DHS (D.D.C.) -- finding that agency’s search was inadequate because it relied on too few keywords and excluded obvious synonyms; adopting plaintiff’s metaphor that “FOIA requests are not a game of Battleship. The requester should not have to score a direct hit on the records sought based on the precise phrasing of his request.”

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

FOIA News: Federal judge claims State Dept misled court on Clinton records

FOIA News (2018)Ryan MulveyComment

Judge complains he was lied to by feds in Clinton email suit, then retreats

Josh Gerstein, Politico, Oct. 12, 2018

A federal judge complained Friday that he was lied to by the State Department in a suit related to Hillary Clinton's private email server, but he later backed off his claim, saying he may have been mistaken.

At a hearing on a Freedom of Information Act case about talking points related to the Benghazi attack, Judge Royce Lamberth complained that officials told the court that they had completed searching the agency's records for information on the topic even though they knew that Clinton and other officials had used private email accounts for official business.

"The State Department told me it had produced all the records," Lamberth complained. "That was not true at the time....It was not true. It was a lie."

Justice Department attorney Robert Prince repeatedly interrupted, denying the judge's claim.

"It was not a lie, your honor," Prince said during the tense exchange. He went on to say that while the State Department had not immediately revealed the internal effort to recover Clinton's email, it did search those messages soon after receiving them.

Read more here.

Court opinion issued Oct. 10, 2018

Court Opinions (2018)Allan BlutsteinComment

James v. DOD (D. Alaska) -- ruling that: (1) government improperly relied on Exemption 6 to withhold names and current location of Army personnel who gave sworn statements related to plaintiff’s wrongful death lawsuit; and (2) government properly withheld “personnel recommendation” pursuant to deliberative process privilege.

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

FOIA News: Forbes recaps Exemption 4 case

FOIA News (2018)Allan BlutsteinComment

IRS Keeps Percentages Paid Private Collection Companies Secret

By Peter J Reilly, Forbes, Oct. 10, 2018

It would be interesting to know what the split is when a private collection company convinces a delinquent taxpayer to pay up. There is a belief common in some circles, that private businesses do everything better than government does.  Well, when it comes to collecting delinquent taxes, it seems like Congress wants to reinforce that belief. Back in the nineties, Congress made it illegal for the IRS to evaluate people whose job it is to collect delinquent taxes based on how much they collect.  More recently the IRS has been required by Congress to hire private collection companies to contact delinquent taxpayers.  The companies get a percentage of what they collect.  Scott Hodes wanted to know what percentages companies the companies get.  The IRS won't tell him.

Read more here.

Copy of court decision here.