FOIA News: New Federal Government App Solves The Wrong FOIA Problems, Poorly

New Federal Government App Solves The Wrong FOIA Problems, Poorly

By Alexander Howard, Huffington Post, 7/7/15

When the Department of Homeland Security launched a mobile app to send Freedom of Information Act (FOIA) requests directly to the federal government agency, it created a precedent. Unfortunately, it was a bad one.

Instead of launching a better way for the public to make and track requests or teaming up with the Department of Justice to fund work on a universal FOIA request feature at the government's openFOIA website, the federal agency that receives and responds to the largest number of FOIA requests in the country actually made the experience of submitting one worse.

The app lets you do a bunch of things you already could do on the World Wide Web: It was already possible to learn how to make a FOIA request online using a simple form at DHS.gov or regulations.gov, check the status of a request, browse the DHS FOIA library or read about exemptions using a mobile web browser. Instead of just making any of those webpages responsive to the device accessing them, however, DHS made a new mobile app with a tiny font size that duplicates them.

Read more here.

FOIA News: Clinton emails may revive environmental group's lawsuit

Clinton emails may revive environmental group's lawsuit

By Sarah Westwood, Washington Examiner, 7/7/15

An environmental group whose request for records related to the Keystone Pipeline was reportedly hampered while Hillary Clinton served as secretary of state is considering taking the case to court for the second time.

Ben Schreiber, climate and energy program director at Friends of the Earth, said his group has weighed the option of relitigation in the weeks since learning that Clinton's chief of staff, Cheryl Mills, had interfered in the agency's handling of Freedom of Information Act requests for Keystone documents.

While Schreiber said Friends of the Earth received a number of emails involving Clinton's top aides when the original case settled during Clinton's tenure, he noted the State Department did not then have any of the secretary's emails to produce.

Read more here.

FOIA News: Bill and Hillary Clinton fight new demand for email server

Bill and Hillary Clinton fight new demand for email server

By Josh Gerstein, Politico, July 3, 2015

Lawyers for former President Bill Clinton and former Secretary of State Hillary Clinton have moved to block a conservative lawyer's effort to pry into emails stored on the Clintons' private server.

In a motion filed Thursday evening in federal court in West Palm Beach, Fla., the Clintons' attorneys ask that conservative gadfly Larry Klayman be temporarily barred from demanding information in connection with a racketeering lawsuit he filed in March against the couple and the Clinton Foundation. The suit alleges that the Clintons used the private email server to frustrate Freedom of Information Act requests Klayman filed for records about waivers of Iranian sanctions and about leaks relating to measures the U.S. and Israel took to deal with Iran's nuclear program.

During a telephone conference in the case Wednesday, federal magistrate Dave Brannon gave Klayman the go ahead to begin discovery — the process of demanding documents, evidence and testimony — relevant to the suit.

Read more here.

Q&A: closed bankruptcy case

Q. Can FOIA be used to get a document or documents from a closed bankruptcy case?

A. The federal Freedom of Information Act does not apply to records maintained by federal courts, including bankruptcy cases.  If the bankruptcy records you seek are more than 15 years old, you may request them through the National Archives and Records Administration (NARA).  See http://www.archives.gov/research/court-records/form-90.pdf. Federal court records that are less than 15 years are not maintained by NARA, but are still in the possession of individual federal courts.  You can locate a federal court case by using the Public Access to Court Electronic Records (PACER) or by visiting the Clerk’s Office of the courthouse where the case was filed.  See http://www.uscourts.gov/courtrecords/find-case-pacer.

FOIA News: OIP releases updated guidance on "still-interested" letters

Yesterday, July 2, 2015, the Office of Information Policy released updated guidance that outlines a series of procedures that agencies should use when inquiring whether a requester remains interested in the continued processing of his or her request. 

Note that in October 2014, fourteen "requester community" organizations requested that the Office of Government Information Services investigate the government's use of still-interested letters. 

FOIA News: Federal Maritime Commission proposes amendments to FOIA regulations

On July 2, 2015, the Federal Register published a proposed rule that would amend the Federal Maritime Commission's FOIA regulations.

The revisions "update and consolidate the provisions identifying records available without the need for a FOIA request, including records available on the Commission's public Web site; revise response time procedures for processing FOIA requests; affirmatively indicate that the Commission uses a multitrack system for processing FOIA requests; and modify the criteria for a FOIA request to qualify for expedited processing."

The proposed rule will become effective on September 1, 2015, unless "significant adverse comment" is received by August 3, 2015.

Court opinions issued June 30 & July 1, 2015

July 1, 2015

Pacificorp v. U.S. Envtl. Prot. Agency (D. Colo.) -- denying plaintiff's motion for attorney fees because it had a commercial interest in agency's rulemaking records and did not disseminate them to the public. 

Ctr. for the Study of Servs. v. U.S. Dep't of Health & Human Servs. (D.D.C.) -- rejecting government's Exemption 4 claim that disclosure of certain information related to health plans offered pursuant to the Patient Protection and Affordable Care Act would likely cause competitive harm or undermine program effectiveness; denying each parties' motion for summary judgment, however, and warning each party to submit "a clearer presentation of the facts underlying the case."

Kalu v. Internal Revenue Serv. (D.D.C.) -- ruling that request to IRS was deficient because requester's attorney failed to sign form; Transportation Security Admin. properly used Glomar response for watch-list records, but failed to conduct adequate search for other records; and FBI's use of Gomar response for watch-list records likely was proper, but agency's motion for summary judgment inexplicably did not address issue. 

June 30, 2015

Debrew v. Atwood (D.C. Cir.) -- remanding in part and affirming in part Bureau of Prison's action on FOIA requests; finding that BOP's search was adequate with respect to requested telephone records, that requester failed to exhaust administrative remedies as to his request for records about a DNA statute, and that agency neglected to adequately describe its search for records about an internal BOP policy.

Summaries of all cases since April 2015 are available here. 

Court opinions issued June 29, 2015

Taylor v. Nat'l Sec. Agency (11th Cir.) -- holding that agency properly issued Glomar response in conjunction with Exemption 1 in response to pro se requester's request for records about himself.

Speaking Truth To Power v. U.S. Nat'l Nuclear Sec. Admin. (E.D. Pa.) -- granting NNSA's motion for summary judgment after finding that agency had consucted an adequate search; stating that although agency's declaration "did not expressly state that 'all files likely to contain responsive materials ... were searched,' such magic words are not required when, as here, a reasonably detailed affidavit describes a thorough search of those places where responsive documentation is likely to be found."  

Rodriguez v. Dep't of Justice (S.D. Ohio) -- finding that Drug Enforcement Admin. properly invoked Exemption 7(D) to protect information provided by a confidential source, that plaintiff failed to show that such information had been disclosed during his trial, and that DEA conducted a reasonable search for other requested records.   

Long v. Dep't of Homeland Sec. (D.D.C.) -- ruling that nonprofit organization qualified as both an educational institution and a representative of the news media for fee purposes.  See related article from Courthouse News Service here.  

Summaries of all cases since April 2015 are available here. 

Q&A: identity of FOIA requester

Q.  Is the name of the requestor available to the notifying party?

A.  The identity of a FOIA requester (as opposed to a Privacy Act requester) should be freely available to the public, as well as a copy of his or her FOIA request.  Certain personal information might be protected, however, such as a home address, telephone number, etc.  When a FOIA request seeks business or financial records (which sounds like your situation), the affected business or individual should be able to obtain both the identity of the requester and a copy of the FOIA request.  In fact, federal agencies have been encouraged to affirmatively provide such information to the affected business/company as part of its "submitter notice" procedures.  See, e.g., Office of Government Information Services, Throwback Thursday: Thinking about Exemption 4 (Aug 1. 2013) (" DOJ advises not making the submitter file a FOIA request for the name of the requester."), http://foia.blogs.archives.gov/2013/08/01/throwback-thursday-thinking-about-exemption-4/.

Q&A: first-party request to U.S. Attorney General

Q.  I am a criminal trial lawyer seeking information [from U.S. Attorney General] about my client at my client's request How do I go about this and what is the appropriate form to use?

A.  Here is a form you can use to request files about your client from the U.S. Attorney General:  http://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/cert_ind.pdf.  Send your request to Laurie Day, Chief, Initial Request Staff, Suite 11050, 1425 New York Avenue, NW, Washington, D.C. 20530-0001.