Q&A: oil spill claims paid by BP

Q.  How can I secure a list of all BP payees in Mississippi?  I need names and dates and amounts of payments made by BP to claimants.

A.  As you probably know, Deepwater Horizon claimants were initially paid by BP via the Gulf Coast Claims Facility, which then transitioned to the Deepwater Horizon Claims Center.  These entities do not, however, appear to qualify as agencies for FOIA purposes.  The Deepwater Horizon Claims Center has published certain statistical information that might be of interest to you, but it has not disclosed the specific information you seek.  Several federal agencies, notably DOJ and FEMA, have participated in monitoring and overseeing the Deepwater Horizon claims and cost reimbursement process.  If you wish to submit FOIA requests to those agencies, their FOIA websites can be found here:  DOJ and FEMA.   

FOIA News: Resurrection of "high 2"?

Defense bill cause transparency jitters

By Josh Gerstein, POLITICO, May 17, 2015

Defense authorization bills winding their way through Congress are prompting alarm among transparency advocates over a series of proposals that would roll back the scope of decades-old sunshine laws, like the Freedom of Information Act.

One measure open government activists reacted to with deep concern over the weekend would effectively overturn a 2011 Supreme Court ruling that broadened access to federal records. It would do so by rejecting a longstanding interpretation of FOIA allowing agencies to withhold information whose release could undermine government operations. The proposed revision appears in a draft of the 2016 National Defense Authorization Act posted online. However, congressional aides said the draft consists of Pentagon-requested language and has not been formally introduced.

The Senate Armed Services Commitee marked up the NDAA last week. Text of the approved bill is not yet available but a press release from the panel makes no mention of changes to FOIA.

The language the Defense Department sought would restore the pre-2011 interpretation that prevailed in many lower courts for several decades before the Supreme Court's 8-1 decision that those lower courts had essentially invented the notion of that exemption (known as "high 2") out of whole cloth.  The proposal allow [sic] agencies to withhold records that are "predominantly internal" if releasing them "could reasonably be expected to risk impairment of the effective operation of an agency or circumvention of statute or regulation."

Read more here. 

FOIA News: Upcoming deadlines to apply for federal FOIA jobs

May 19, 2015

Office of Inspector Gen., Dep't of Def., Gov't Info. Specialist (feds with competitive status)

May 21, 2015

Def. Fin. & Accounting Servs., Dep't of Def., Gov't Info. Specialist (U.S. citizens)

Natural Resources Conservation Services, Dep't of Agric., Gov't Info. Specialist (current NRCS employees)

Veterans Health Admin., Dep't of Veterans Affairs, Gov't Info. Specialist (feds with competitive status)

May 26, 2015

FAA, Dep't of Transp., Gov't Info. Specialist (current & former feds)

Office of Sec'y of Def., Dep't of Def., Gov't Info. Specialist (U.S. citizens)

Veterans Health Admin., Dep't of Veterans Affairs, Gov't Info. Specialist (VHA employees)   

May 27, 2015

Army Installation Mgmt. Agency, Dep't of the Army, Gov't Info. Specialist (status candidates)

Q&A: application for tax ID numbers (IRS Form SS-4)

Q.  If I submit a FOIA request to the Internal Revenue Service for 'all' of the multiple, SS-4 applications submitted to obtain the issuance of tax Identification numbers that were requested by a specific individual, would my request be granted? 

A.   I will not attempt to dissuade you from spending a mere postage stamp to make that request, but I would not bet the farm on the IRS releasing a third party's SS-4 form(s).  The Internal Revenue Code prohibits the disclosure of "return" or "return information" (terms that are defined broadly), except in limited circumstances such as when the taxpayer consents.  See 26 U.S.C. § 6103.  Notably, two federal district courts recently ruled against FOIA requesters who sought, in part, access to the SS-4 forms of third parties.  See Fields v. IRS  (E.D. Mich. 2013) (agreeing with IRS that plaintiff's request for his father's tax information, including an SS-4 application, was "imperfect" in the absence of consent from executor of father's estate); Surgik v. Cirella (D.N.J. 2012) (holding that SS-4 and other tax information was properly withheld by IRS under Exemption 3 of the FOIA, in conjunction with Section 6103 of the Internal Revenue Code).   

For your convenience, here is an authorization form to obtain tax information from IRS, as well as a link to the agency's FOIA website.    

Q&A: Emails between Congress and non-profit organizations

Q.  Can I use FOIA to request emails between congressional staff and non-profit organizations?

A.  No, unless the emails in question are maintained by a federal agency; neither Congress nor private entities are subject to FOIA.  See 5 U.S.C. § 552(f)(1) (defining "agency"); Mayo v. U.S. Gov't Printing Office, 9 F.3d 1450, 1451 (9th Cir. 1994) (ruling that Government Printing Office is part of congressional branch and therefore is not subject to FOIA); Lazaridis v. DOJ, 713 F. Supp. 2d 64, 67-69 (D.D.C. 2010) (holding that National Center for Missing and Exploited Children and the International Centre for Missing and Exploited Children, both nonprofit organizations, were not subject to FOIA).

FOIA News: Online government FOIA portal in development

A New Front Door for the FOIA Request Process

By Nick Sinai, Medium, May 14, 2015

[T]the U.S. government quietly launched open.foia.gov this month. This service, designed to complement resources available at FOIA.gov, will help journalists, researchers, and the public better navigate the FOIA process — initially by providing some helpful information on how and where to begin a request.

This new service is being built by the General Service Administration’s 18F unit, in partnership with the Department of Justice, which oversees government-wide FOIA policy, and is supported by other parts of the U.S. government.

Read more here. 

Court opinions issued May 14, 2015

Leopold v. CIA (D.D.C.) -- Ruling that a Senate committee report concerning the CIA’s former detention and interrogation program was properly redacted pursuant to Exemption 1 and Exemption 3 (in conjunction with 50 U.S.C. §§ 3024(i)(1) and 3507).  The redactions at issue concerned:  "(1) the costs of CIA detention facilities abroad; (2) amounts paid to unknown countries; (3) the size of monetary cuts to CIA intelligence programs; (4) sums given to previously detained individuals; and (5) compensation for medical services."  With respect to Exemption 1, the court found that the CIA  "complied with the procedural and substantive requirements for classifying the information under Executive Order 13,526."   In analyzing Exemption 3, the court pointed out that it owed  "considerable deference" to the CIA's judgment as to whether disclosure of requested information would reveal intelligence sources and methods. 

List of all cases since April 2015 here.

FOIA News: FTC Sued Over Refusal to Disclose Data Security Policies

FTC Sued Over Refusal to Disclose Data Security Policies

By Jenna Greene, Legal Times, May 14, 2015

The Federal Trade Commission this week was sued for refusing to turn over information about how the agency decides to bring data security cases.

The Freedom of Information Act suit by Philip Reitinger, a former Department of Homeland Security official who is now president of a cybersecurity company, comes as the FTC defends its role as data security cop in two ongoing cases.

“The FTC’s data security activity has increased in recent years and is likely to continue to do so,” wrote Reitinger’s lawyers, Steptoe & Johnson LLP partners Michael Baratz and Stewart Baker, in the complaint. “In light of this increased activity, it is important for the public, including entities subject to the FTC’s data and cybersecurity enforcement, to understand the FTC’s expectations for data security practices and the reasoning for its actions.”

Read more here.
 

FOIA Focus: Michael Bekesha, Attorney, Judicial Watch, Inc.

How long have you been working in the FOIA field?

I first “discovered” FOIA in my administrative law course during my second year of law school.  I think we spent 10 minutes on it, and I did not give it much thought.  I then applied to various organizations in D.C. for a summer internship and I was fortunate enough to receive an offer from Judicial Watch, which uses FOIA frequently.  After I graduated from law school and took the bar, I started working full time at Judicial Watch as an attorney.  In August, I will have been at Judicial Watch for 7 years (including my summer internship).

What are your current job duties at Judicial Watch?

Unlike the traditional practice of law, current events usually dictate my activities.  With respect to Judicial Watch’s FOIA work, I assist the Research & Investigation department in developing investigations and submitting FOIA requests, review FOIA requests to determine whether they are litigation worthy, and handle FOIA lawsuits from start to finish, which, on two occasions, meant everything from drafting the complaint to filing the cert petition.  In addition, I work with other organizations, the news media, and Congress on issues uncovered by Judicial Watch’s FOIA work.  Besides FOIA, Judicial Watch also litigates rule of law issues.  Most recently, on behalf of a D.C. taxpayer, I filed suit seeking to enjoin members of Congress and certain congressional staffers from purchasing health insurance through the “Small Business Exchange.”

What is the most unusual agency response you have received to a FOIA request?

Any time an agency produces all responsive records in their entirety, I think it is unusual.

Of all the FOIA matters you have worked on, which has received the most prominent media coverage? 

You never know what the media is going to cover.  You may think the records you received are of the utmost importance; however, they barely get noticed.  Two FOIA matters stand out:

1.  After the death of Senator Ted Kennedy, Judicial Watch, like many other entities, submitted a FOIA request for the late senator’s FBI file.  Judicial Watch subsequently sued.  During litigation, the FBI eventually released one page that it had been withholding under a claim of national security.  In it, the FBI had noted that, “While Kennedy was in Santiago he made arrangements to ‘rent’ a brothel for an entire night.  Kennedy allegedly invited one of the Embassy chauffeurs to participate in the night’s activities.”  When we released the record to the public, it went viral.

2.  Of a completely different nature, Judicial Watch requested and sued for the post-mortem images of Osama bin Laden.  We challenged the withholdings all of the way to the Supreme Court.  News media organizations around the world covered our legal filings the entire way.

What do you like and not like about working on FOIA matters?

FOIA exposes you to many different components of the federal government.  One day I was litigating records concerning the financial bailouts.  The next day, I was briefing whether the post-mortem images of bin Laden were properly classified.  I also sent a request for the audio files of Beyoncé singing the national anthem after it was revealed that she lip-synced her performance at the 2012 Inauguration.

FOIA is frustrating.  Although it is supposed to favor the requester, it doesn’t -- especially when it comes to the courts.  FOIA really is becoming more of a withholding statute than a disclosure statute.  Congress needs to rein in the Executive Branch’s abuse of the various FOIA exemptions.

If you could change one thing about the FOIA, what would it be and why? 

Once a requester sends a request, he is left in the dark.  A requester is just stuck waiting for the agency to get back to him.  There needs to be more transparency and accountability in the process.

If the government would release any document(s) you requested, what would you ask for and why?

There is not one particular document I would ask for; however, I generally would love to see the records of deliberations about whether to release certain records.

Where were you born/grow up?

I grew up in Framingham, Massachusetts, which is just 20 miles west of Boston.

Where have you attended school and what did you study?  

I was a political science major at Northwestern University in Evanston, Illinois.  I attended law school at the University of Missouri-Columbia, School of Law.

What was your first job ever?  What did you like or not like about it?

Kelly’s Roast Beef and Seafood.  I worked the register, but also other duties as needed.  I liked it because it involved problem solving and required me to think quickly on my feet.

What do you like to do in your spare time?

I am a season ticket holder of the Washington Nationals.  I am also heavily involved as an alumni volunteer with Northwestern University in both alumni relations and development.

What are some of your favorite books?  Television shows?

President Obama was just asked this same question.  The news media analyzed his answers to determine what it means about him.  I don’t know what my answer means, but I don’t read as much as I should or I would like to.  However, I always enjoy John Grisham’s latest novel.

Favorite television show is easy: Sports Night and -- like most of my generation -- The West Wing.

What is your most memorable travel experience?

I love Rome.  One minute you are stepping back into ancient Rome.  The next minute you are enjoying its modern culinary scene.  Lots of small neighborhoods in this ancient city.  You just don’t get that in the U.S.

FOIA News: House subcommittee marks up DHS FOIA Efficiency Act of 2015; DHS hit with another putative class action FOIA suit

Yesterday, the House Homeland Security Subcommittee on Oversight and Management Efficiency marked up the DHS FOIA Efficiency Act of 2015, H.R. 1615.   As we noted a few days ago, this legislation would require DHS to, among other things, update its regulations, develop plans to automate its FOIA processing, and issue internal guidance concerning backlog reduction goals.  Three amendments were passed by the subcommittee, none of which significantly change the bill's original mandate.

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On May 11, 2015, a rejected applicant for U.S. citizenship filed a putative class action suit against DHS in the Southern District of Indiana for failing to respond to his FOIA requests concerning his application.  Plaintiff, who alleges that DHS has "a nationwide pattern and practice of failing to respond to FOIA requests within the statutory period," seeks to represent a class of "all pending and future applicants for immigration benefits who are issued a denial from the USCIS Indianapolis Field Office." 

DHS is also a party to an immigration-related, putative class action FOIA lawsuit in the Northern District of California.