FOIA Advisor

Court opinions issued June 13-14, 2018

Court Opinions (2018)Allan BlutsteinComment

June 14, 2018

Janangelo v. Treasury Inspector Gen. for Tax Admin. (9th Cir.) (unpublished) -- affirming district court's decision that agency properly issued Exemption 6 Glomar response to request concerning third party's alleged misconduct, and that agency had not officially acknowledged existence of records.  

Coffey v. Bureau of Land Mgmt. (D.D.C) -- awarding plaintiff attorney's fees in case concerning agency's Wild Horse and Burro Program, but reducing amount sought from $125,541 to $69,019 primarily because plaintiff spent excessive time on various pleadings. 

Rhodes v. FBI (D.D.C.) -- ruling that FBI properly relied on Exemption 7(E) in refusing to confirm or deny the existence of records indicating whether plaintiff's name appears on any agency watch lists.

June 13, 2018

100Reporters v. DOJ (D.D.C.) -- concluding that DOH overbraodly applied Exemptions 4, 5, 6, and 7(C) in withholding certain records generated by company's independence compliance monitor.  

Summaries of all published opinions issued since April 2015 available here


FOIA News: Postal Service proposes FOIA reg changes

FOIA News (2018)Allan BlutsteinComment

The U.S. Postal Service has issued a proposed rule appearing in today's Federal Register that would amend the agency's Freedom of Information Act regulations.  The revisions "would improve clarity, make technical corrections, and create a definition of '`information of a commercial nature'  as it pertains to the Postal Reorganization Act's provisions."  Comments must be received on or before July 16, 2018.

FOIA News: OGIS Explains the role of NARA's Federal Records Centers in FOIA

FOIA News (2018)Ryan MulveyComment

FOIA and NARA's Federal Records Centers

Nat'l Archives & Records Admin., FOIA Ombudsman, June 13, 2018

We sometimes hear from FOIA requesters and agency personnel who are confused about why a FOIA request for records at the National Archives and Records Administration (NARA) is not processed by NARA. The answer has to do with whether the federal agency or NARA has legal custody of the records, and requires a brief explanation.

NARA only takes legal custody of records that have been determined to be of permanent historical value. The term of art used by records management staff for the transfer of permanent records to NARA is “accessioning.” “Accession” is the process of transferring legal – and in most cases physical – custody of permanent records from federal agencies to NARA. See 36 C.F.R. § 1235.  While the terms “transfer” and “accession” are often used interchangeably, there is an important distinction. “Transfer” refers to moving records into the physical custody of a NARA Federal Records Center (FRC). The transferring agency, however, retains legal custody of the transferred records until final disposition.

Read the original post here.

Court opinion issued June 12, 2018

Court Opinions (2018)Allan BlutsteinComment

Cause of Action Inst. v. IRS (D.D.C.) -- concluding that agency performed reasonable search for communications with White House regarding third-party document requests; notably approving IRS's decision not to search email accounts of Office of Disclosure employees because its highest ranking official attested that he was unaware of any relevant IRS-White House consultations.

[Note:  I was counsel on this case for Cause of Action Inst. during its earlier stages]

Summaries of all published opinions issued since April 2015 available here

FOIA News: NPR Discussion on Freedom of Information

FOIA News (2018)Kevin SchmidtComment

The Freedom Of Information And Our Government

By David Folkenflik, NPR, June 13, 2018

The flow of information to the public in the Age of Trump. What do we know about what the government is doing in our name and with our tax dollars?


Solomon Lartey, worked for over 29 years as a records management analyst at the White House’s Office of Records Management.

Dr. Gretchen Goldman, Research Director, Center for Science & Democracy at the Union of Concerned Scientists. (@GretchenTG)

Anne Weismann, Chief Counsel for Freedom of Information Act matters at the non-profit Citizens for Responsibility and Ethics in Washington.

Alex Howard, writer and open government advocate. Former Deputy Director at the Sunlight Foundation. (@digiphile)

Read and listen here.

FOIA News: DHS Hit With FOIA Suit Over Asylum Practices At Border

FOIA News (2018)Kevin SchmidtComment

DHS Hit With FOIA Suit Over Asylum Practices At Border

By Suzanne Monyak, Law360, June 13, 2018

An immigration advocacy group accused the U.S. Department of Homeland Security in D.C. federal court Tuesday of violating the Freedom of Information Act by withholding documents related to how border patrol agents process asylum requests.

The nonprofit American Immigration Council's complaint asks the court to force the DHS and U.S. Customs and Border Protection to hand over documents on their practices and policies when dealing with noncitizens who ask Border Patrol agents for asylum or express a fear of persecution in their home countries.

Read more here (subscription).

FOIA News: Former FBI official Andrew McCabe files FOIA lawsuit against FBI, DOJ, DOJ-OIG

FOIA News (2018)Ryan MulveyComment

Fired FBI official Andrew McCabe's lawyers file suit against FBI, DOJ, and its watchdog

Elizabeth Zwirz, Fox News, June 12, 2018

Lawyers representing former FBI Deputy Director Andrew McCabe filed a suit against the Justice Department and FBI on Tuesday, alleging that they wouldn't give up files connected to his ouster.

McCabe’s lawyers claimed the Justice Department has denied access to the sought-after information out of concern that the documents could be later used against them, the lawsuit said. The suit also named the office of the DOJ inspector general.

“We don’t create or adjudicate under secret law or procedure,” David Snyder, a lawyer representing McCabe, told The Associated Press.

A representative for the Justice Department did not immediately respond to Fox News' request for comment.

Read more here.

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With His New Lawsuit, McCabe is About to Learn Himself How Hard It is to Get Info From DOJ

Elura Nanos, Law & Crime, June 13, 2018

Well, we had to expect that there’d be at least some litigation-flavored fallout over that nasty Andrew McCabe firing; ousting the guy a day before his planned retirement and thereby yanking away his health and retirement benefits was a signature Trump display of one-upsmanship.

It looks like David L. Snyder, counsel for McCabe (much like we at Law & Crime), knew that the defamation lawsuit McCabe initially threatened wasn’t really the way to go. As an alternative, he’s trying his hand at a different kind of claim. Instead of suing for some version of “Trump Shouldn’t Have Fired My Client,” Snyder has brought a Freedom of Information Act (“FOIA”) lawsuit on behalf of McCabe against the Department of Justice and the FBI; in it, Snyder alleges that the agencies have violated FOIA by failing to turn over the documents that purportedly formed the basis for McCabe’s termination. He now seeks court intervention to force the government to turn over various documents from the FBI and the Office of the Inspector General.

The lawsuit demands internal documents, including FBI and OIG manuals and policy implementation guides, alleging that those things are non-exempt “records” within the meaning of FOIA. According to the allegations, the government’s failure to turn over these materials so far, “constitutes a continuing pattern and practice of violating the proactive disclosure requirements of FOIA.”

Read more here.

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A copy of the McCabe complaint can be found here.

FOIA News: Watchdog groups fight to make Kushner's White House office subject to the FOIA

FOIA News (2018)Ryan MulveyComment

Trump Administration Can't Hide Jared Kushner-led Office From FOIA Requests, Watchdogs Claim in New Court Filing

Jessica Kwong, Newsweek, June 12, 2018

An attempt by the Trump administration to dismiss a lawsuit against its Jared Kushner–led Office of American Innovation (OAI) for failing to respond to public records requests is being challenged by two government watchdog groups.

Democracy Forward and Food & Water Watch filed a brief in a federal district court on Monday, opposing the administration’s motion to dismiss the nonprofit watchdogs’ February lawsuit against the office for ignoring Freedom of Information Act (FOIA) requests.

In its May motion, the administration claimed that the office—despite launching initiatives, implementing programs and imposing duties on government agencies—exists solely to advise President Donald Trump and therefore qualifies for a narrow exception from the rule that all executive branch offices are subject to FOIA.

Read more here.

FOIA News: OIP Publishes Guidance on the Importance of Quality Requester Services

FOIA News (2018)Kevin SchmidtComment

OIP Published Guidance on the Importance of Quality Requester Services

DOJ Office of Information Policy, FOIA Post, June 12, 2018

Today, OIP published guidance on the importance of quality requester services. This new guidance, “The Importance of Quality Requester Services:  Roles and Responsibilities of FOIA Requester Service Centers and FOIA Public Liaisons,” highlights the vital role that FOIA Requester Servicer Centers and FOIA Public Liaisons play in providing helpful and timely explanations of the FOIA process to members of the public.

DOJ has long emphasized the importance of agencies working with FOIA requesters in a spirit of cooperation. In that spirit, today’s guidance details specific roles and responsibilities for FOIA Requester Service Centers and FOIA Public Liaisons, two established ways agencies interact with the public during the FOIA request process.

Read more here.