FOIA Advisor

FOIA News: DDC rejects motion for preliminary injunction in FOIA case

FOIA News (2018)Ryan MulveyComment

District Court Rejects Preliminary Injunction to Force BCFP to Respond to FOIA Request

Weiner Brodsky Kider PC, JDSupra, Nov. 19, 2018

On November 1, 2018, the District Court for the District of Columbia denied a motion for a preliminary injunction to have the BCFP turn over documents related to a 2015 Civil Investigative Demand (CID) issued to a real estate website company.  The Court refused the preliminary injunction request because it concluded that the plaintiff had failed to establish a likelihood of success on the merits, show irreparable harm, or demonstrate that the balance of hardship and the public interest weigh in favor of injunctive relief.

The plaintiff in this case is lead counsel in a class action, where he represents purchasers of the real estate website company securities that was subject to a BCFP CID in 2015.  In the class action, the purchasers alleged the real estate company violated the Securities Exchange Act of 1934. However, that case was dismissed without prejudice with leave to amend.  The judge in that case directed the purchasers to file a second amended complaint by November 16, 2018.  As a result, the attorney submitted a FOIA request to the BCFP for records concerning the 2015 CID, but the Bureau did not provide the records within the 20-day statutory time frame set to respond to a FOIA request.  The attorney asked the court in the current case to issue a preliminary injunction ordering the Bureau to release all responsive records to the FOIA request, as he argued that these documents were critical to supporting the allegations in the second amended complaint.

Read more here.

[FOIA Advisor reported on the issuance of the decision discussed in this article, Baker v. CFPB, earlier this month.]

FOIA News: OGIS posts Thanksgiving greetings

FOIA News (2018)Ryan MulveyComment

OGIS gives thanks for . . .

Nat’l Archives & Records Admin., FOIA Ombudsman, Nov. 19, 2018

In this season of gratitude, we at OGIS would like to pause and give thanks for:

FOIA professionals: Our work resolving FOIA disputes and evaluating compliance brings us into contact with many FOIA professionals from many agencies.  We are thankful for how hard they work every single day to carefully balance the interests of disclosure with the interests of the Federal government to maximize disclosure and access to information to the extent possible.

The FOIA process: From estimated dates of completion to rolling releases to earnest efforts to narrow the scope of requests, we are grateful for examples of the FOIA process working as it should. This includes the administrative review process, which allows agencies to take a fresh look at initial processing decisions and often provides additional explanations of the agency’s actions.

FOIA geeks: Yes, it’s true, there are those who obsess over the FOIA and not just those of us at OGIS. We are grateful for our collaborative relationship with our colleagues at the Office of Information Policy at DOJ. We are grateful for members of civil society groups and academics who devote countless research and advocacy hours to our favorite Federal statute. We are grateful for organizations like the American Society of Access Professionals who make space for the free flow of new ideas. We are grateful for the special people from both inside and outside of government who have and are donating their time on the FOIA Advisory Committee, collaborating on ways to improve the FOIA process.

OGIS supporters: To the Archivist of the United States to our Federal agency and Congressional colleagues, and to the entire requester community, we are grateful for your support.

Above all, we are very grateful to all of the people who think and care about FOIA, advise OGIS and spur us on to tackle hard topics, all with the goal of making FOIA work better—and that includes you, our blog readers. Wishing you all a happy Thanksgiving!

Original post may be read here.

FOIA News: Intelligence Community IG cites lacking technology in FOIA handling

FOIA News (2018)Ryan MulveyComment

Intel Agencies Lack ‘Adequate Tech’ for FOIA Requests

Aaron Boyd, NextGov, Nov. 19, 2018

If the intelligence community wants to lessen its information request backlog and avoid lawsuits, the agencies need to make better use of technology and stop applying an “industrial age process … to a digital age challenge.”

A Sept. 28 report from the intelligence community inspector general released publicly last week found the agencies’ processes for responding to requests under the Freedom of Information Act, or FOIA, is inefficient and will continue to lead to growing backlogs and litigation if not improved. Among the issues is a lack of “adequate technology” to support processing FOIA requests.

Technology is being used to manage FOIA requests across the IC, though not uniformly. The inspector general looked at 10 standard use cases for technology in this area and found only the CIA was using those tools in every instance. Other agencies hit most of the areas of effort, though two, the Defense Intelligence Agency and the Office of the Director of National Intelligence, only showed progress in five and six areas, respectively.

Among the technologies, all six agencies reviewed were using tools to help with search, redaction and interagency referrals and consultations. On the low end, only three agencies—CIA, National Reconnaissance Office and the National Security Agency—were using technology to help with archive and retrieval of prior releases and for converting or otherwise preparing documents for dissemination.

Read more here.

Court opinions issued Nov. 15-16, 2018

Court Opinions (2018)Allan BlutsteinComment

Nov. 16, 2018

Talbott v. U.S. Dep’t of State (D.D.C.) -- finding that CIA and State Department performed reasonable, supplemental searches for records relating to President Kennedy’s assassination, and denying plaintiff’s bid to overturn six aspects of the court’s previous opinion.

Nov. 15, 2018

Jones v. U.S. Border Patrol Agent Hernandez (S.D. Cal.) -- summarily ruling that DHS performed reasonable search and properly withheld records pertaining to plaintiff’s arrest at U.S.-Mexico border, which led to dueling lawsuits between plaintiff and the arresting agent.

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

FOIA News: More complaining about FOIA processing

FOIA News (2018)Allan BlutsteinComment

If You Want The Government To Hand Over Documents, You Might Want To Retain A Lawyer

from the get-busy-suing-or-get-busy-waiting dept

By Tim Cushing, Techdirt, Nov. 16, 2018

Fifty years after the passage of the Freedom of Information Act, the letter of the law lives on but its spirit has been crushed. While it's definitely preferable to having no opportunity to demand government agencies hand over requested documents, it's not the significant improvement it was promised to be.

As was noted here four years ago, the government has pretty much adopted a presumption of opacity that necessitates the filing of lawsuits. This contradicts the law's intentions, as well as proclamations made by President Obama, who declared his administration the "most transparent." This assertion fell flat when government agencies engaged in FOIA business as usual and Obama did nothing to hold them accountable.

Read more here.

FOIA News: FOIA Advisory Committee to meet on Nov. 29

FOIA News (2018)Ryan MulveyComment

Next FOIA Advisory Committee Meeting: November 29, 2018

Nat’l Archives & Records Admin., FOIA Ombudsman, Nov. 14, 2018

The intersection of the Freedom of Information Act (FOIA) and records management will be the focus of the next FOIA Advisory Committee meeting on November 29, 2018, in the William G. McGowan Theater at the National Archives in Washington, DC.

The meeting, from 10:00 a.m. to 1:00 p.m., is the second of the 2018-2020 term of the FOIA Advisory Committee, whose members are appointed by the Archivist of the United States and are tasked with studying FOIA across the government, soliciting public comments, and recommending improvements to the Archivist. This is the third two-year term of the Committee, established by the National Archives and Records Administration in 2013 under the Open Government National Action Plan 2.0. The Committee’s members, all experts in FOIA, come from both inside and outside the government. OGIS’s Director chairs the Committee and NARA staff administratively support its work.

Read more here.

Court opinions issued Nov. 13, 2018

Court Opinions (2018)Allan BlutsteinComment

Anguiano v. U.S. Immigration & Customs Enforcement (N.D. Cal.) -- ruling that : (1) ICE failed to show that its search was adequate in all respects; (2) court could not evaluate ICE's use of Exemptions 5 and 7(E) without reviewing certain documents in camera; and (3) ICE properly relied on Exemptions 6 and 7(C) to protect information regarding third parties and ICE employees.

Chase v. DOJ (D.D.C.) -- finding that plaintiff had offered no new arguments that warranted changing court’s earlier opinion that government had performed adequate search for records concerning plaintiff’ criminal conviction and that it properly withheld names of third parties pursuant to Exemption 7(C).

Pubien v. Exec. Office for U.S. Attorneys (D.D.C.) -- concluding that EOUSA performed adequate search for grand jury information regarding plaintiff’s criminal case, and that it properly withheld the names of government employees pursuant to Exemption 6.

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

FOIA News: SCOTUS denies cert in FOIA case

FOIA News (2018)Ryan MulveyComment

Supreme Court Won’t Review Ex-IRS Employee’s FOIA Suit

Yvonne Juris, Law360, Nov. 13, 2018

The U.S. Supreme Court on Tuesday declined to hear a suit by a former Internal Revenue Service employee challenging the IRS watchdog agency’s rejection of his Freedom of Information Act request concerning a congressional investigation that he triggered.

As usual, the high court did not explain its denial. In his September petition to the court, Peter Janangelo asked the justices to review court rulings that allowed the Treasury Inspector General for Tax Administration to reject his November 2015 FOIA request.

Janangelo was seeking records from TIGTA on an investigation into alleged misconduct by an IRS manager that had been triggered by a congressional inquiry by Rep. Joe Heck, R-Nev. Janangelo had informed Heck about the alleged misconduct, according to court documents.

“There is a public interest in this information, aside from Mr. Janangelo’s personal interest in defending himself, and that is that these documents will expose violations of federal law including nepotism, retaliation for whistle-blowing, and discrimination in favor of certain employees with personal or sexual relationships with their superiors at the IRS, which is a scandal worthy of public exposure,” Janangelo said in his petition.

TIGTA invoked the Glomar response — named for a Central Intelligence Agency denial of a FOIA request for records of a secret government salvage ship called the Hughes Glomar Explorer — to dismiss his claims, saying it could neither confirm nor deny the records existed, according to court documents.

Read more here (subscription required).

FOIA News: "The Sorry State of FOIA"

FOIA News (2018)Ryan Mulvey1 Comment

The Sorry State of FOIA

C.J. Ciaramella, Reason, Nov. 13, 2018 (Dec. 2018 Print Edition)

When the Freedom of Information Act (FOIA) was passed in 1966—about five years before public trust in government started to crater as a result of the Pentagon Papers and then Watergate—it was a landmark law and an exciting, promising new tool for reporters, researchers, and concerned citizens. More than 50 years later, it is a wheezing, arthritic artifact of more optimistic times.

More people than ever want to know what the government is doing in their name and with their money. The number of submitted FOIA requests has steadily increased year-over-year, a trend that has only accelerated under the daily controversies of the Trump administration, which said it received roughly 800,000 such requests in 2017, a record. At the same time, despite recent legislation to strengthen the law, it's more difficult than ever to pry loose documents about the federal government. The Associated Press reported in March that the number of FOIA requests denied or censored by the feds also hit a record high in the first year of the Trump administration: "The times the government said it would be illegal under other U.S. laws to release requested information nearly doubled to 63,749."

Read more here.

FOIA News: The FOIA Project releases annual report on FOIA lawsuits in FY 2018

FOIA News (2018)Ryan MulveyComment

Annual Report: FOIA Lawsuits Reach Record Highs in FY 2018

Chistine Mehta, The FOIA Project, Nov. 12, 2018

Freedom of Information Act (FOIA) lawsuits continued to break record highs in FY 2018. According to case-by-case court records, 860 FOIA lawsuits were filed in FY 2018 against government agencies. In addition, the backlog of FOIA suits waiting to be decided rose to 1,204 cases, an all-time high.

Compared to an average of 402 FOIA suits per year during the Obama Administration, the rate of filing since President Trump assumed office has more than doubled. While suits rose during the latter years of the Obama Administration, the 860 suits filed in FY 2018, represent a 67 percent increase over filings during the last full fiscal year of the Obama Administration.

Although not the only factor, a notable pattern emerging during FY 2017 and 2018 is the rising number of nonprofit filers. In FY 2018, nonprofits comprised 56 percent of all FOIA lawsuits brought against the government. Nonprofits became increasingly active under the Obama Administration, but emerged as the majority of all FOIA lawsuit plaintiffs after President Trump took office. In FY 2016, nonprofit filers comprised just 36 percent of plaintiffs, whereas they comprised 50 percent or more in FY 2017 and FY 2018 (see previous report, “FOIA Suits Filed by Nonprofit/Advocacy Groups Have Doubled Under Trump”). Suits filed by reporters and news organizations also have been increasing.

Read more here.