FOIA News: ICYMI, cost estimate issued for House FOIA bill

In a report issued on May 5, 2015, the Congressional Budget Office estimated that implementing H.R. 653, the FOIA Act, would cost $22 million between 2016 and 2020.  Read the full report here.

Court opinions issued May 7, 2015

Hoeller v. Soc. Sec. Admin. (E.D. Wi.) -- Finding that SSA conducted a reasonable search in response to plaintiff's request concerning his disability benefits; the fact that a particular document could not be located did not undermine the adequacy of the search.  The court further found that plaintiff had received all records that SSA located and that he was not entitled to other requested relief under FOIA, such as a stipulation or additional explanations from SSA about its search or plaintiff's disability benefits. 

List of all cases since April 2015 here.

Q&A: records from Saginaw County, Michigan

Q.  I want to receive information from a county facility in Saginaw, Michigan.  I was told to file FOIA request.  

A.   You can use the sample FOIA request form on page 11 of 309 of this Saginaw County manual.  For tips about making requests, you might also want to review this article from the Detroit Free Press.

Q&A: personnel file at private company with government contracts

Q.   I work for a company with federal, state and local government contracts. I requested all information (employment, training records) they have on me. I was told that they couldn't give me that information. How do I FOIA that information?

A.  Private companies are not subject to the federal Freedom of Information Act; they are excluded from the statute's definition of an agency.  Moreover, a private company is not converted to a federal agency merely by doing business with federal (or state or local) agencies.  If the federal government extensively supervises the day-to-day operations of a private company, however, it might then be deemed a government-controlled corporation subject to FOIA.  You have not identified the State in which your employer is located, but most State freedom of information laws are modeled on the federal FOIA.  Click here for links that will enable you to locate your State's freedom of information law.  

Although FOIA may not be a remedy, you might wish to contact your State's labor department to find out whether you have the right to access your personnel file under State law.  The following article appears to answer that question, but I cannot verify its accuracy.

FOIA News: Horror Stories; More Clinton Email Lawsuits

House Oversight Committee asks for FOIA horror stories

By Hadas Gold, Politico, May 6, 2015

The House Oversight Committee is reaching out to reporters, asking them to relay some of their Freedom of Information Act horror stories in preparation for a hearing next month on how to improve the FOIA process.

"Over the years I have heard from many of you that the FOIA process is broken," House Oversight Committee spokesperson Melissa Subbotin Sillin wrote in an email to reporters. "Many requests go unaddressed, come back heavily redacted for no apparent reason, or are ignored altogether. Both majority and minority committee members are coming together to do a deep analysis to find where the problems exist and what fixes need to be made. In order to do so, we need your help."

Read more here.  

State Department hit with 7 more Clinton-related FOIA lawsuits

By Josh Gerstein, Politico, May 6, 2015

A conservative watchdog group filed seven new Freedom of Information Act lawsuits against the State Department this week, all relating to Hillary Clinton's tenure as secretary of state.

The suits, filed Tuesday and Wednesday in U.S. District Court in Washington, seek all the work-related emails Clinton sent and received on her private accounts, as well as records about her use of a private server for her email, names of other State employees who used private accounts for work email and Clinton's messages related to the Benghazi attack. Also sought are details of the State Department's ethics review process for donations to the Clinton Foundation, details on Clinton's resignation and emails sent on a private account by Clinton's deputy chief of staff Huma Abedin.

Read more here. 

Q&A: allegations of misconduct at local school (with follow-up)

Q.  I filed an FOIA with a local school district to obtain info about allegations against me for unprofessional conduct.  I was told that that information was in a 'private file,' and I was not allowed to see or dispute said information to defend myself.  Can they legally deny me access to information about me?  The allegations were not for any criminal wrongdoing.

A.   As an initial matter, you may have avenues of access to the requested records outside of your State's freedom of information laws if, for example, you have a union contract that permits access or your employer has taken an unfavorable personnel action against you.  Therefore, if you have not done so already, you might wish to speak with your union representative or an employment lawyer. 

Putting those variables aside, however, the school district's FOIA denial may very well be proper.  Although the records in question pertain to you, to be sure, public disclosure of those records (in whole or in part) could jeopardize the privacy and safety of a third party and confidential source.  These potential harms may outweigh your personal interest or the public interest in disclosure, even if you have a reasonable belief about the identity of the complainant.  Under the federal FOIA, such harms are intended to be prevented by Exemptions 6, 7(C), and 7(D).  You have not identified the State in which your employer is located, but most State freedom of information laws are modeled on the federal FOIA. 

Lastly, if you are dissatisfied with the FOIA denial (which I assume you are), you might wish to check your State's applicable statute to determine whether you may (or must) file an administrative appeal before proceeding to court.  Click here for links to State freedom of information laws.

Q.  Follow up question to my earlier question.  First, thank you for such a quick and informative response.  I have been removed from [redacted by FOIA Advisor] by the district and asked not to [redacted by FOIA Advisor].  Due to the severity of their action against me, I feel there must be erroneous if not blatant lies in this "private file." Do I have no recourse in this matter?  Could they not redact identifying information, or at least give me dates times and places for the allegations that apparently they believe are true so that I could directly address them?

A.   You may have multiple remedies.  As I mentioned above, if you have filed a FOIA request that has been denied, your State's freedom of information law may permit an administrative appeal.  If not, it will undoubtedly allow you to file a lawsuit.  Whether the records in question can be redacted and released in part (i.e., de-identified), as you suggest, is impossible to know at this point.  The entire document could tend to identify a third party, including the date and time of any alleged incident.  Or the identifying information and non-identifying information might be so intertwined that a redacted document would be incomprehensible.  In federal FOIA litigation, a court may agree or demand to review the records in camera to assess the propriety of the agency's withholdings.  It otherwise relies upon agency affidavits that describe the information withheld.  I again refer you here for links to State freedom of information resources.

Further, your State's labor laws might permit you to access your personnel file, in whole or in part.  See the following website that addresses each State's applicable law.  I cannot, however, verify its accuracy. 

You might have other causes of action, such as breach of contract or violation of due process, but I am not familiar enough with education law or teachers' rights to advise you.  I can only suggest that you consult with someone who is.

Court opinions issued May 6, 2015

Bartko v. DOJ (D.D.C.) -- Ruling that redactions made by the Executive Office of United States Attorneys under Exemption 5 were proper because pro se prisoner-plaintiff did not contest them.  The court further ruled that the agency properly denied plaintiff's request for a waiver of duplication fees, because the "incidental public-interest benefits to be gained . . . are minimal in comparison to the unavoidably obvious personal purpose for which the records are sought" -- namely, to challenge plaintiff's criminal conviction.  Lastly, the court rejected plaintiff's allegation that the agency manifested bad faith by, among other things, delaying its processing of records by several months, denying plaintiff's requests to waive fees or to pay fees in installments, and producing public source documents despite his request to exclude them.

Pelligrino v. TSA (E.D. Pa.) -- Upholding in part and rejecting in part the agency's witholdings under Exemption 5 and Exemption 6 after conducting an in camera review, and ordering agency to submit a more-detailed search affidavit. Search:  The court found that TSA's affidavit identified the offices that had been tasked to conduct searches, but contained "no actual information on how these searches were conducted."  There was "no information about what the tasking forms said, what records were searched, what search terms were used, or what procedures were followed." Exemption 5, Attorney Work-Product Privilege:  The court rejected TSA's argument that the mental processes used by an attorney to collect documents in a case file triggered the privilege.  The vast majority of the documents were found to qualify, however, because they were "created in anticipation of litigation."  Attorney-Client Privilege: The court ruled that communications from an attorney to clients providing confidential legal advice qualified for the attorney-client privilege.  Further, the court rejected plaintiff's contention TSA's attorneys commited crimes or misconduct so as to preclude the agency's withholding of documents based on attorney work-product or attorney-client privileges.  Deliberate Process Privilege:  The court found that an  "EIR Offical Recommended Action form" did not qualify under the privilege because it merely showed "the officials' concurrence with a recommended action" and did not reflect or reveal "anything about the agency officials' thought processes or discussions that led to their decision." Exemption 6:  The court found that TSA properly invoked Exemption 6  to withhold the names and identifying information of TSA employees, but improperly  withheld the time-stamp from a cover email and the title of an email attachment that had been released.  

List of all cases since April 2015 here.

Court opinions issued May 5, 2015

Columbia Riverkeeper v. U.S. Army Corps of Eng'rs (D. Or) -- Awarding plaintiff $86,878 in attorney fees and $2,411 in litigation costs after reducing billing for duplicative work, excessive time, and time spent on an unsuccessful claim.

List of all cases since April 2015 here.

FOIA News: Reporting on Senate FOIA hearing

Senators look for answers on FOIA reform, Clinton emails

By Adam Mazmanian, FCW, May 6, 2015

A bipartisan group of senators is looking to jumpstart open government legislation that flagged in the waning days of the last Congress. The FOIA Improvement Act of 2015 would expand the proactive disclosure of government documents, waive fees for Freedom of Information Act requesters who are not served on deadline, and require the government to set up a one-stop online portal for filing requests to government agencies, rather than the current piecemeal approach. 

Three of its key backers -- sponsor  John Cornyn (R-Texas), Chuck Grassley (R-Iowa), and Patrick Leahy (D-Vt.) -- checked in with key FOIA enforcers at a hearing of the Senate Judiciary Committee to find out how the administration was doing in complying with existing FOIA requests. 

See more here.  

Q&A: records from child protective services in Idaho and South Dakota

Q.  Can I use the Freedom of Information Act to obtain information from "health and welfare child protection services" in Idaho and South Dakota?

A.   Yes, as a general matter.  In Idaho, the Department of Health and Welfare is subject to the state's public records law.  Here are instructions about making a request to the Department, as well as a guide to the applicable law.  In South Dakota, the Department of Social Services is subject to the state's open records law.  For your convenience, here is a request template that you can use.            

Keep in mind, however, that certain records are protected from disclosure.  For example, you may not be able to access a third party's medical or other personal information without that person's consent.  These exemptions are spelled out in each state's law, which are accessible in the links above.