Court opinions issued July 20, 2015

B&P Co. v. Internal Revenue Serv. (S.D. Ohio) -- ruling that IRS properly withheld a draft Revenue Agent Report pursuant to Exemptions 3, 5, and 7(A), and that it performed an adequate search for requested restitution-related documents.    

Smith v. U.S. Dep't of Justice (D.D.C.) -- concluding that Drug Enforcement Administration performed an adequate search in response to plaintiff's request for records about himself; further finding that DEA properly refused to confirm or deny the existence of certain records pertaining to a third party who testified against plaintiff at criminal trial.

Summaries of all cases since April 2015 are available here.

FOIA News: Archivist Appoints New OGIS Director

Archivist Appoints New OGIS Director

The National Archives, July 23, 2015

Archivist of the United States David Ferriero announced the appointment of James Holzer as the Director of the Office of Government Information Services (OGIS) on July 21, 2015, effective August 9. We hope all of you will join us in welcoming Dr. Holzer to the OGIS staff!

Dr. Holzer comes to OGIS from the Department of Homeland Security (DHS) Privacy Office, where he has served as the Senior Director of Freedom of Information Act (FOIA) Operations. While at DHS, Dr. Holzer supervised a team of FOIA professionals and served as the senior advisor to DHS’ executive-level leaders on FOIA and the Privacy Act. He also spearheaded a number of initiatives to improve implementation of FOIA across DHS.

Read more here.

FOIA News: DOJ Agnostic on Timing for Publishing FOIA’d Documents

DOJ Agnostic on Timing for Publishing FOIA’d Documents

freedominfo.org, July 21, 2015

The Justice Department has no current position on whether first requesters should get a priority look at the documents released before they are made available to the public under a planned “release to one, release to all” policy, according to Melanie Ann Pustay, Director of the Office of Information Policy at the Justice Department.

The timing issue popped up quickly as a hot button topic for scoop-jealous journalists after Justice announced its pilot program to assess the value and costs of more online disclosure of documents released under the Freedom of Information Act. (See previous FreedomInfo.org article.) The timing of such online releases will be examined as part of the pilot program being conducted at seven agencies, Pustay said in written answers to questions submitted by FreedomInfo.org.

Q: Has Justice made suggestions on the timing of release to requesters vs. release to the public?

A. No. This is one of the areas we will be testing during the pilot. In practical terms, there will usually be some lag time between the time that records are turned over to the original requester, and when they can be scanned and coded for posting. But this is certainly an area we want to study, collect data on and get feedback from outside stakeholders, including journalists. We welcome your views.

Read more here.

Q&A: FOIA statute of limitations

Q.  I submitted a FOIA request back in 2001 and more than 75% of the records were "blacked out."  I then filed an administrative appeal, which was denied [also in 2001].  How do I go about requesting judicial review?  

A.  You may not file a lawsuit based upon the agency's adverse determination in 2001, because the statute of limitations is six years.  See 28 U.S.C. Sec. 2401(a).  You may, however, submit a duplicate request at any time, re-appeal any withholdings, and then file a lawsuit within six years.  See Spannaus v. U.S Dep't of Justice, 824 F.2d 52, 61 (D.C. Cir. 1987) (commenting that appellant, who had missed the deadline to file a lawsuit, could "simply refile his FOIA request tomorrow and restart the process"). 

Court opinions issued July 17, 2015

Chiquita Brands Int'l v. Sec. & Exch. Comm'n & Nat'l Sec. Archive (D.C. Cir.) -- in "reverse-FOIA" case decided under Administrative Procedure Act, affirming district court's decision that disclosure of requested records would not deprive appellant of a fair trial within meaning of Exemption 7(B).    

Milner v. U.S. Dep't of Def. (W.D. Wash.) -- ruling that agency properly withheld records pursuant to Exemption 3 in conjunction with 10 U.S.C. § 130e (critical infrastructure security information); that agency failed to justify its withholding a compilation of "logistical data" under the deliberative process privilege; that Exemption 6 properly protected information concerning high-ranking employees, but agency failed to identify rank of one employee; and that agency improperly refused to search for responsive records that it alleged were previously produced to plaintiff in another proceeding.  

Summaries of all cases since April 2015 are available here.

FOIA News: Judge slams State Department over Hillary Clinton-related records

Judge slams State Department over Hillary Clinton-related records

By Josh Gerstein, Politico, July 20, 2015

A federal judge is lashing out at the State Department for delaying for years in providing responses to Associated Press Freedom of Information Act requests seeking records about former Secretary of State Hillary Clinton's schedules and her top staffers.

At a contentious hearing last week, U.S. District Court Judge Richard Leon demanded explanations for why some of the AP's requests received no reply for four years or more before the wire service filed suit in March.

Leon said he was determined to establish "what has been going on in the State Department for four years dragging their feet, not addressing these issues for four years."

Read more here.

FOIA News: Weekend Roundup

Oldest FOIA requests: 20 years, and still waiting
By James Eli Shiffer, Star Tribune, July 19, 2015

Why the Laura Poitras case is bigger than you think
By Jack Murtha, Columbia Journalism Review, July 17, 2015

Dem group trying to dig up dirt on Donald Trump
By Nick Gass, Politico, July 17, 2015

FOIA News: A Wizard at Prying Government Secrets From the Government

A Wizard at Prying Government Secrets From the Government

By Ravi Somaiya, New York Times, July 19, 2015

When the reporter Jason Leopold gets ready to take on the United States government, he psychs himself up by listening to the heavy metal bands Slayer and Pantera.

Mr. Leopold describes himself as “a pretty rageful guy.” He argued recently with staff members at his son’s preschool because he objected to their references to “Indians” and they objected to his wearing family-unfriendly punk rock T-shirts to school meetings.

Mr. Leopold, 45, who works for Vice News, reserves most of his aggression for dealing with the government. He has revealed about 20,000 pages of government documents, some of them the basis for explosive news stories. Despite his appearance — on a recent day his T-shirt featured the band name “Sick of It All” — his secret weapon is the opposite of anarchic: an encyclopedic knowledge of the Freedom of Information Act, the labyrinthine administration machine that serves it and the kind of legal judo often required to pry information from it.

Read more here.

FOIA News: FOIA Advisory Committee meeting July 21, 2015

The Freedom of Information Act (FOIA) Advisory Committee will host an open meeting on Tuesday, July 21, 2015.  The meeting is open to the public and will focus on the FOIA issues on which the Committee will focus its efforts:  FOIA oversight and accountability, proactive disclosures, and FOIA fees.  The meeting will be held from 10:00 a.m. to 1:00 p.m. EDT.  Registration for the meeting must be completed on or before 5:00 p.m. EDT July 20, 2015.

Read more here

Court opinion issued July 14, 2015

Hall v. CIA (D.D.C) -- awarding plaintiffs more than $400,000 in interim attorney fees for decade-old litigation pertaining to missing prisoners of war or soldiers missing in action from the Vietnam War era. 

Summaries of all cases since April 2015 are available here.