FOIA News: Senate rejects attempt to weaken FOIA — for now

Senate rejects attempt to weaken FOIA — for now

By Matthew Rumsey, Sunlight Foundation, June 17, 2015

The Senate debate over the National Defense Authorization Act (NDAA) is always controversial — in part because of the upper chamber's insistence on marking the bill up in a secret session. But this year's bill, which is being wrapped up on the floor this week, was punctuated by a win for open government.

When the NDAA came to the floor last week, Senate Majority Leader Mitch McConnell, R-Ky., tried to attach a controversial cybersecurity measure as an amendment. While most senators appear to support the broad idea of the bill (known as the Cybersecurity Information Sharing Act, or CISA) it includes several highly controversial provisions — including one that would add an entirely new exemption to FOIA. Thanks to these provisions, privacy and transparency advocates, Sunlight included, have vehemently opposed the bill.

Read more here.

FOIA News: Senator Cardin (D-MD) petitioned to include private prisons within FOIA

Coalition letter to Sen. Cardin on private prisons FOIA loophole

By Zach Graves, R Street Institute, June 15, 2015

We, the undersigned 20 organizations committed to transparency and open government, write to thank you for your concern with the effectiveness of the Freedom of Information Act (FOIA) as it pertains to non-federal entities that contract with the federal government to hold federal detainees or prisoners.

Almost 20 percent of detainees and prisoners in the federal system are held in private jails or prisons. Tens of thousands more are held in jails or prisons run by local jurisdictions. Despite the fact they are holding people in federal custody under color of federal law, these non-federal entities are not subject to the federal FOIA, and the federal agencies that contract out for jail and prison beds often rely on FOIA Exemption 4 – the business trade secrets exemption – to avoid responding in full to FOIA requests pertaining to privately run facilities.

Read more here.

Q&A: breast cancer from nuclear bomb testing?

Q.  How can I get my deceased mother's hospital records or Medicare insurance records from 1968 to 1972?  I need to submit evidence that she had breast cancer to the National Cancer Benefits Center.  I have her birth and death certificates.

A.  It appears as if you wish to apply for federal benefits under the Radiation Exposure Compensation Act (RECA)program established by the U.S. Department of Justice.  Five categories of claimants are eligible.  If your mother contracted breast cancer after living near certain nuclear test sites prior to 1963, for example, you might be eligible for a $50,000 payment under the "Downwinders" program.   You would need to submit, among others things, one of following records to prove your mother's illness:  (i) Pathology report of tissue biopsy or surgical resection; (ii) Autopsy report; (iii) One of the following summary medical reports: (A) Physician summary report; (B) Hospital discharge summary; (C) Operative report; (D) Medical oncology summary or consultation report; (E) Radiotherapy summary or consultation report; (iv) Report of mammogram; (v) Report of bone scan; (vi) Death certificate, provided that it is signed by a physician at the time of death.  See RECA Downwinder application here.  

It is highly unlikely that any hospital or physician still maintains your mother's medical records.  Even today, such records generally are not required to be maintained for more than seven years from a patient's last treatment date or three years beyond death.  Nor do I believe that the federal government is likely to possess the records you seek.  If your mother's death certificate does not list breast cancer as the cause of death, you might wish to contact a State cancer registry where your mother lived or authorize the Department of Justice to contact it on your behalf.

FOIA News: Upcoming deadlines to apply for federal FOIA jobs

June 15, 2015

DHS, Immigration & Customs Enforcement, Paralegal Specialist (status candidates)

June 16, 2015

DHS, Nat'l Protection & Programs Directorate, Gov't Info. Specialist (U.S. citizens)

Dep't of Agric., Food & Nutrition Serv., Gov. Info Specialist (federal employees)

Dep't of Agric., Food & Nutrition Serv., Gov. Info Specialist (U.S. citizens)

June 18, 2015

HHS, Program Support Ctr., Gov. Info Specialist (status candidates)

June 19, 2015

HHS, Program Suport Ctr., Gov. Info Specialist (U.S. citizens)

HHS, Program Support Ctr., Gov. Info Specialist (status candidates)

June 19, 2015

Dep't of the Navy, Gov. Info. Specialist (U.S. citizens) 

June 23, 2015

SEC, Research Specialist (status candidates)

Court opinions issued June 11, 2015

Gahagan v. U.S. Citizenship & Immigration Serv. (E.D. La.) -- ruling that USCIS conducted an adequate search; properly invoked Exemption 6 to withhold dates of birth, addresses, phone numbers, social security numbers, and financial information; and properly referred records to U.S. Immigration and Customs Enforcement notwithstanding ICE's four-month delayed response. 

Summaries of all cases since April 2015 are available here. 

Court opinions issued June 10, 2015

Speaking Truth to Power v. Nat'l Nuclear Sec. Admin. (E.D. Pa.) -- denying as "futile" plaintiff's motion to add two agencies as defendants because:  (1) plaintiff had failed to administratively appeal one agency's initial response; and (2) second putative defendant would not have responsive records not already maintained by named defendant. 

Summaries of all cases since April 2015 are available here. 

FOIA News: New FOIA exemption at stake in cybersecurity bill fight

New FOIA exemption at stake in cybersecurity bill fight

By Josh Gerstein, Politico, June 11, 2015

As POLITICO reported in April, the Senate Intelligence Committee-passed version of the cyber bill advanced by McConnell Wednesday would add a new, tenth exemption to FOIA covering all "information shared with or provided to the Federal Government" under the new measure.

The bill would also mandate that the government withhold from the public "cyber threat indicators and defensive measures" that companies or individuals share with authorities.

The provisions are designed to encourage companies to share information with the government about attacks on their computer systems so that officials can build a viable defense of both public and private sector networks and data pools currently vulnerable to hackers from abroad.

Read more here.

Court opinions issued June 9, 2015

Am. Bird Conservancy v. U.S. Fish & Wildlife Serv. (E.D. Va.) -- awarding plaintiff $106,000 in attorney's fees

Speaking Truth to Power v. DOD (E.D. Pa.) -- denying plaintiff's motion for attorney's fees

Ryan v. FBI (D.D.C) -- denying plaintiff's motion seeking recusal of presiding judge

Summaries of all cases since April 2015 are available here. 

FOIA News: FDA sued for denying FOIA request for Ebola records

Goldwater Institute sues FDA over Ebola drug protocol

By Angela Gonzales, Phoenix Business Journal, June 10, 2015

The Goldwater Institute is suing the U.S. Food and Drug Administration in an attempt to uncover government secrets.

The FDA denied the Phoenix-based think tank's Freedom of Information Act request for information about the FDA's internal approval process that allowed Americans infected with Ebola  to be successfully treated with a drug under development.

Jon Riches, an attorney with the Goldwater Institute, said the FDA told his group it could not give away trade secrets.

"We didn't ask for any proprietary commercial information," he said. "All we asked for was the government process used to approve these drugs. The FDA drug approval process should be open to the scrutiny of the public."

Read more here.

Court opinions issued June 8, 2015

Trentadue v. FBI (D. Utah) -- following an in camera review, the court ruled that the government properly withheld  records at issue pursuant to Exemption 1, 3, and 7(E).   

Summaries of all cases since April 2015 are available here.