FOIA News: Exemption 5 Case Makes SCOTUSblog's Petitions of the Week

Petitions of the week

By Andrew Hamm, SCOTUSblog, Nov. 22, 2019

U.S. Fish and Wildlife Service v. Sierra Club
19-547
Issues: Whether Exemption 5 of the Freedom of Information Act, by incorporating the deliberative process privilege, protects against compelled disclosure of a federal agency’s draft documents that were prepared as part of a formal interagency consultation process under Section 7 of the Endangered Species Act of 1973 and that concerned a proposed agency action that was later modified in the consultation process.

Full list here.

FOIA News: ASAP FOIA training on Dec. 3, 2019

On December 3, 2019, the American Society for Access Professionals will host a “Food for Thought” training session at Lafayette Center in Washington D.C. The topic will DOJ’s recent Exemption 4 guidance. Seating is limited to 30 people. Additional information is available here.

FOIA News: Nearly 100 FOIA suits filed in October

October 2019 FOIA Litigation with Five-Year Monthly Trends

By FOIA Project Staff, Nov. 19, 2019

During the month of October 2019 federal district courts saw a total of 96 new Freedom of Information Act (FOIA) lawsuits filed under 5 U.S.C. 552. To place this number in perspective, 96 new filings compares with a monthly average of 73 filings during the last 12 months. This month’s total brought overall FOIA filings on an annual basis for these last 12 months to 872.

Read more here.

FOIA News: FBI loses Glomar case re: social media monitoring

Judge Rules FBI Cannot Hide Use of Social Media Surveillance Tools 

Nicholas Iovino, Courthouse News Serv., Nov. 18, 2019

The FBI cannot hide whether it uses powerful surveillance tools to monitor the social-media activity of millions of Americans and noncitizens, a federal judge ruled Monday.

U.S. District Judge Edward Chen rejected the government’s argument that acknowledging such surveillance capabilities, or the lack thereof, could reveal sensitive law enforcement techniques that would help criminals evade justice.

Read more here.

Copy of decision in post below.

FOIA News: MuckRock looks at FOIA views of 2020 candidates

The future president’s feelings on Freedom of Information

We took a look at the 2020 candidates and their records on transparency

By Adrien Salzberg & Joseph Ratliff, MuckRock, Nov. 18, 2019

We’re one full year away from the 2020 election for President of the United States, and this, of course, means we’re already right in the thick of it.

At MuckRock, we want our political bigwigs and career bureaucrats alike to appreciate the critical importance of government transparency. The openness of any potential administration, Democrat or Republican, is going to impact how the public will be included and be able to engage on all of the other issues important to voters and the future of the country.

Read more here.

FOIA News: U.S. Attorney General decries FOIA intrusion into Executive Branch deliberations

U.S. Attorney General William Bar delivered remarks to the Federalist Society on November 15, 2019 that included a brief discussion of the Freedom of Information Act:

The costs of this constant harassment are real.  For example, we all understand that confidential communications and a private, internal deliberative process are essential for all of our branches of government to properly function.  Congress and the Judiciary know this well, as both have taken great pains to shield their own internal communications from public inspection.  There is no FOIA for Congress or the Courts.  Yet Congress has happily created a regime that allows the public to seek whatever documents it wants from the Executive Branch at the same time that individual congressional committees spend their days trying to publicize the Executive’s internal decisional process.  That process cannot function properly if it is public, nor is it productive to have our government devoting enormous resources to squabbling about what becomes public and when, rather than doing the work of the people.

FOIA News: The 2020 "Foilies"

Submit Your FOIA Horror Stories for The Foilies 2020

By Dave Maass, Electronic Frontier Found., Nov. 15, 2019

Calling all transparency advocates, investigative journalists, and assorted FOIA punks!

It’s once again time to submit your nominations for The Foilies—EFF’s annual, tongue-in-cheek awards for outrageous, ridiculous, and infuriating responses to public records requests. 

Each year during Sunshine Week (March 15-21, 2020), EFF publishes The Foilies to shine light on all the manifold ways that authorities thwart the public’s right to examine government records.

Read more here.

FOIA News: State Dep't IG finds no impropriety with "FOIA surge" reassignments

In May 2018, Democratic lawmakers asked the Department of State’s Inspector General to investigate allegations that career officials were improperly reassigned to perform Freedom of Information Act duties in retaliation for their political beliefs. A report released by the IG this week found “no evidence of any improper considerations in the personnel decisions" concerning those reassignments.

FOIA News: Judge slams DOJ over FOIA claims on McCabe

Judge slams feds over murky stance on McCabe

By Josh Gerstein, Politico, Nov. 14, 2019

A federal judge excoriated Justice Department officials Thursday for their handling of potential criminal charges against former Deputy FBI Director Andrew McCabe, saying the continued uncertainty over the prosecution was unfair to McCabe and the public.

* * *

Walton, a George W. Bush appointee overseeing a Freedom of Information Act lawsuit filed by a watchdog group to obtain records about McCabe’s firing, complained at a hearing Thursday afternoon that the Justice Department claims about an ongoing potential prosecution of McCabe may have been a “smoke screen” to persuade the judge to forestall the case demanding documents.

Read more here.

FOIA News: DOJ drops Exemption 7(A) claim in McCabe lawsuit

Justice Department withdraws secrecy argument on McCabe files

DOJ attorneys said they were no longer arguing that public release of records about Andrew McCabe would interfere with an ongoing enforcement action.

By Josh Gerstein, Politico, Nov. 13, 2019

A change to the Justice Department’s legal stance in a suit related to former FBI deputy director Andrew McCabe is prompting fresh speculation about the mysterious state of the Justice Department’s effort to prosecute McCabe over alleged misstatements to investigators about his interactions with colleagues during the 2016 election.

In a brief court filing Wednesday, Justice Department attorneys said they were no longer arguing that public release of records about McCabe would interfere with an ongoing enforcement action. That claim is typically used to withhold records about ongoing investigations or prosecutions.

Read more here.