FOIA Advisor

FOIA News: FOIA Advisory Committee Hearing Scheduled for September 5, 2019

FOIA News (2019)Kevin SchmidtComment

SUMMARY:

We are announcing an upcoming Freedom of Information Act (FOIA) Advisory Committee meeting in accordance with the Federal Advisory Committee Act and the second United States Open Government National Action Plan.

DATES:

The meeting will be on September 5, 2019, from 10:00 a.m. to 1:00 p.m. EDT. You must register for the meeting by midnight EDT September 2, 2019.

ADDRESSES:

National Archives and Records Administration (NARA); 700 Pennsylvania Avenue NW; William G. McGowan Theater; Washington, DC 20408.

FOR FURTHER INFORMATION CONTACT:

Kirsten Mitchell, Designated Federal Officer for this committee, by mail at National Archives and Records Administration, Office of Government Information Services, 8601 Adelphi Road—OGIS; College Park, MD 20740-6001, by telephone at 202-741-5770, or by email at foia-advisory-committee@nara.gov.

Read more here.

Court opinions issued Aug. 15, 2019

Court Opinions (2019)Allan BlutsteinComment

Humane Soc'y Int'l v. U.S. Fish & Wildlife Serv. (D.D.C.) -- concluding that: (1) names of names of individual wildlife importers and exporters were properly withheld pursuant to Exemption 7(C); and (2) parties were required readdress whether disputed information was properly withheld under Exemption 4 in light of Supreme Court’s recent decision invalidating National Parks test.

Behar v. DHS (S.D.N.Y.) -- determining that U.S. Secret Service Service properly relied on Exemption 7(C) to withhold names of law enforcement personnel from records concerning Donald Trump’s meetings as presidential candidate and as president-elect, but that declarations did not sufficiently address privacy interests of other third parties.

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

Court opinions issued Aug. 13, 2019

Court Opinions (2019)Allan BlutsteinComment

Higgs v. U.S. Park Police (7th Cir.) -- reversing district court’s decision that FBI did not justify its use of Exemption 7(C) to withhold records about third parties involved in plaintiff’s triple-murder conviction . The Seventh Circuit found that even though record was not fully developed as to varying interests of third parties, plaintiff’s public interest arguments -- namely that disclosure would reveal government misconduct and educate public about DOJ’s execution of its law-enforcement duties - - could not not overcome those privacy interests.

N.Y. Legal Assistance Grp.. v. Bd. of Immigration Appeals (S.D.N.Y.) -- holding that neither FOIA nor Administrative Procedure Act permitted the court to order agency to publish requested material in electronic reading room.

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

FOIA News: 9th Circuit affirms that animals are not "individuals" under FOIA

FOIA News (2019)Allan BlutsteinComment

Animals Aren't "Individuals" for Freedom of Information Act Purposes

By Eugene Volkh, Volkh Conspiracy 8/13/2019

In yesterday's Ninth Circuit decision in Animal Legal Defense Fund v. U.S. Dep't of Agriculture, the ALDF had asked that a Freedom of Information Act request be expedited; the statute calls for such expedited processing when "failure to obtain requested records on an expedited basis … could reasonably be expected to pose an imminent threat to the life or physical safety of an individual." The request, though, had to do with the health of Tony the Tiger (no, not the Frosted Flakes one):

Read more here.

Court opinions issued Aug. 12, 2019

Court Opinions (2019)Allan BlutsteinComment

Animal Legal Def. Fund v. USDA (9th Cir., 2019) -- affirming decision that district court had jurisdiction over plaintiff’s claim that USDA had policy or practice of denying plaintiff’s requests for expedited processing, and also affirming district court’s decision that threats to safety of animals do not fall within statute’s expedited processing provision -- nor, in dicta, within Exemption 7(F).

Cable New Network v. FBI (D.D.C.) -- denying FBI’s motion to reconsider prior opinion granting access to FBI declaration, rejecting argument that FBI had “effectively” invoked Exemption 3 despite never mentioning it in briefs or declarations.

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

Q&A: Hide and seek

Q&A (2019)Allan BlutsteinComment

Q. If I am trying to confirm the impanelment of a federal grand jury on a particular matter, would I be able to FOIA the DOJ or the FBI for records related to the case? Presumably it would be denied explicitly because criminal investigations are exempt from FOIA scrutiny. But I’m thinking that the denial letter might therefore, in turn, confirm the criminal investigation in the first place? Am I misunderstanding anything about this process?

A. You can try, but the statute allows the government to thwart requests like yours. For example, If the very fact of a criminal investigation's existence is unknown to the target of the investigation, and disclosing the existence of the investigation could reasonably be expected to interfere with enforcement proceedings, the government is authorized to inform the requester a search yielded no responsive records. See 5 U.S.C. 552(c)(1). Alternatively, if your request seeks records about third parties, the government can simply refuse to confirm or deny the existence of records on privacy grounds without conducting a search.

FOIA News: Texas Sen. Cornyn joins push to strengthen public access to government records

FOIA News (2019)Kevin SchmidtComment

Texas Sen. Cornyn joins push to strengthen public access to government records

By Bill Lambrecht, Houston Chronicle, Aug. 9, 2019

A bipartisan alliance of senior U.S. senators, including Texas Sen. John Cornyn, is sponsoring legislation to counter a U.S. Supreme Court ruling in June interpreting the word “confidential” in a way that further blocks the release of government-held information on businesses.

In Washington, Cornyn and three other Judiciary Committee heavyweights - chairman Chuck Grassley, R-Iowa, Vermont Democrat Patrick Leahy, a former chairman, and Dianne Feinstein of California, now the committee’s ranking Democrat — plan to advance legislation after the Senate recess to counter the Supreme Court’s effects on the Freedom of Information Act.

Read more here.

Court opinion issued Aug. 8, 2019

Court Opinions (2019)Allan BlutsteinComment

Ctr. for Pub. Integrity v. U.S. Dep't of Commerce (D.D.C.) -- deciding that Commerce and U.S. Office of Government Ethics submitted deficient Vaughn indices and failed to demonstrate that they released all segregable, non-exempt information -- in particular the authors, recipients, dates, and subject fields of emails, letters, and memoranda, which government claimed had no informational value.

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