FOIA News: DHS Must Rethink Justification For FOIA Withholding: Judge

DHS Must Rethink Justification For FOIA Withholding: Judge

By Bryan Koenig, Law360, Aug. 7, 2015

A D.C. federal judge this week knocked down one of the justifications the U.S. Department of Homeland Security has used to withhold the names of defense contractors participating in a cyber threat information-sharing program, even while finding proper most justifications for refusing a Freedom of Information Act request.

U.S. District Judge Gladys Kessler on Tuesday found the government's application of an FOIA exemption meant to protect confidential sources unjustified because the participating contractors weren't sources but rather recipients of government information. Her ruling gave the DHS the chance to file a revised exclusion justification, even as it found that other exemptions the department relied on — including for withholding the contractor names — were justified.

Read more here.

Court opinions issued August 4 through August 6, 2015

August 6, 2015

Soto v. U.S. Dep't of State (D.D.C.) -- concluding that Exemption 3, in conjunction with 8 U.S.C. § 1202(f), protected information concerning issuance or denial of visas to enter United States, but deferring ruling on whether agency properly withheld information pertaining to revocation of a student visa; further determining that agency conducted a reasonable search for requested records. 

August 5, 2015

Envtl. Integrity Project v. Small Bus. Admin. (D.D.C.) -- determining that Office of Management and Budget properly withheld requested records under the deliberative process privilege, which was not precluded by Executive Order 12866; further finding that SBA failed to justify its withholdings under same privilege and ordering documents to be provided to court for in camera review.   

August 4, 2015

Richardson v. United States (D.D.C.) -- granting Executive Office for Unites States Attorneys' motion for renewed summary judgement after determining that agency had conducted an adequate search and properly withheld two documents pursuant to Exemption 7(C).

Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec. (D.D.C.) -- ruling that DHS performed an adequate search and properly withheld certain information concerning a cyber-security pilot program pursuant to Exemptions 1, 3 (18 U.S.C. § 798 and 50 U.S.C. § 3605), 4, and 5 (attorney-client), but finding that agency had not supported its reliance upon Exemption 7(D).    

Summaries of all cases since April 2015 are available here.

Q&A: immigration in Seattle

Q.  How do I find immigration records of a family coming to America through the port of Seattle in 1956?

A.  All immigrants admitted since May 1, 1951 should be entirely documented in an A-File, a unified folder intended to hold all records related to one individual. A-Files numbered 8 million and above (arrived May 1, 1951 and after) are available through the USCIS Freedom of Information Act Program (FOIA).

FOIA News: Freebie tickets from D.C. Mayor

Who’s Enjoying Bowser’s Tickets at Verizon Center and Nationals Park?

By Will Sommer, Wash. City Paper, Aug. 7, 2015

Ex-Mayor Adrian Fenty has always known the power of stadium tickets. When he was in charge, Fenty feuded twice with the members of the D.C. Council over city suites at Verizon Center and Nationals Park, once by trying to keep tickets from council members who crossed him and again by not handing over the tickets to anyone (a fight Washington Post columnist Colby King called “a spat among spongers”).

LL would think that the globe-trotting former pol—spotted earlier this year squiring Steve Jobs’ widow on a St. Barts shopping trip—would be over the free tickets back in dreary old D.C. But not so!

Like many pals and hangers-on associated with Mayor Muriel Bowser, Fenty has been eager to take in the perks that come with his protégé’s new office. Since Bowser was inaugurated, according to mayoral records, Fenty has received tickets for four Verizon Center basketball games in the city suite. (Mayoral mom Jan Fenty, meanwhile, took in a Bette Midler show on mayoral largesse.)

He’s not the only one. A Freedom of Information Act response posted to the mayoral FOIA reading room website shows who else (besides the ex-mayor) has been feeding at this particular trough. The requests also reveal the kind of Bowser and Fenty affiliates who circle around the new administration, despite not holding an official position.

The request covers all mayoral suite tickets handed out between January and June, according to Bowser administration FOIA officer Jim Slattery. (Council records on the suites obtained by LL only show which council members’ offices received tickets, not who they eventually went to.)

Read more here.

Q&A: video footage from nightclub

Q.  Can I obtain video from nightclub were I was assaulted by the bouncers?

A.  Generally speaking, the federal Freedom of Information Act and State open record laws apply to government entities only, not to private establishments.  You might be able to obtain any security camera footage, or at least prevent it from being discarded or erased, if you file a lawsuit against the establishment or file a complaint with local police.  In that regard, I can only recommend that you consult with an attorney licensed in your State.

FOIA News: List of administrative appeal deadlines

We hope this alphabetical listing of agency appeals deadlines will be useful for our readers.  Note that quite a few agencies require an appeal to be in its possession within the prescribed time period in order to be considered timely filed, as opposed to being postmarked or sent.   

FOIA News: FBI looking into the security of Hillary Clinton’s private e-mail setup

FBI looking into the security of Hillary Clinton’s private e-mail setup

By Carol D. Leonnig, Rosalind S. Helderman and Tom Hamburger, Washington Post, August 4, 2015

The FBI has begun looking into the security of Hillary Rodham Clinton’s private e-mail setup, contacting in the past week a Denver-based technology firm that helped manage the unusual system, according to two government officials.

Also last week, the FBI contacted Clinton’s lawyer, David Kendall, with questions about the security of a thumb drive in his possession that contains copies of work e-mails Clinton sent during her time as secretary of state.

The FBI’s interest in Clinton’s e-mail system comes after the intelligence community’s inspector general referred the issue to the Justice Department in July. Intelligence officials expressed concern that some sensitive information was not in the government’s possession and could be “compromised.” The referral did not accuse Clinton of any wrongdoing, and the two officials said Tuesday that the FBI was not targeting her.

Kendall confirmed the contact, saying: “The government is seeking assurance about the storage of those materials. We are actively cooperating.”

Read more here.

FOIA News: NSA Ordered to Look Harder for Records

NSA Ordered to Look Harder for Records

By Britain Eakin, Courthouse News Service, August 4, 2015

A federal judge dismissed most, but not all, of the National Security Agency's requests to dismiss a reporter's FOIA request on federal surveillance of judges.

Jason Leopold, formerly with Al-Jazeera America and now with Vice News, filed two FOIA requests for NSA and FBI "surveillance of federal and state judges."

The NSA and the Department of Justice's Office of Legal Counsel responded that they had no such records.

Read more here.

FOIA News: Gawker presses on Philippe Reines emails

Gawker presses on Philippe Reines email

By Josh Gerstein, Politico, August 4, 2015

The website Gawker is asking a federal judge to order the State Department and former Hillary Clinton adviser Philippe Reines to produce sworn affidavits about his email practices and about why the agency asserted in response to a 2012 Freedom of Information Act request that it had no records of his correspondence with 34 news organizations.

"The appropriateness of the actions by Mr. Reines in particular – as well as the action or inaction by State – are legitimate subjects of concern in the context of this litigation," Gawker attorneys Brad Moss and Mark Zaid wrote in a court filing submitted Monday night. "The FOIA request serving as the basis for this litigation was filed almost three years ago....Throughout the entirety of that time, there is no indication that State had ever sought to recover any relevant e-mails from Mr. Reines, to say nothing of the fact that it is unclear on what legal basis Mr. Reines still retained exclusive control over those e-mails in the first place years after his departure from State."

Read more here.

Court opinions issued July 31, 2015

Dibacco v. U.S. Army (D.C. Cir.) -- affirming the adequacy of searched performed by Army and CIA, as well as the CIA's Exemption 1 and 3 withholdings; remanding for the district court to address in the first instance plaintiffs' challenges to redactions in records that the Army disclosed to plaintiffs while the appellate case was pending.  See article from Courthouse News Service here.

Justice v. Mine Safety & Health Admin. (S.D. W. Va.) -- holding that agency could not categorically withhold memos of investigative interviews under Exemptions 5 and 7(C), and ordering agency to re-review records for segregable, non-exempt information.    

Cole v. Fed. Bureau of Investigation (D.D.C.) -- ruling that FBI properly refused to confirm or deny the existence of employment and disciplinary records for an FBI agent who allegedly committed misconduct in connection with plaintiff's prosecution for transporting and distributing child pornography. 

Leopold v. Nat'l Sec. Agency (D.D.C.) -- rejecting most of plaintiff's challenges to the searches performed by NSA and DOJ's Office of Legal Counsel; ordering NSA to search its United States Signals Intelligence Directive System; ordering OLC to search for draft documents and to indicate whether its earlier searches located no records at all or located some records that were deemed non-responsive.

Tracy v. U.S. Dep't of Justice (D.D.C) -- determining that FBI conducted an adequate search and properly withheld  information under Exemptions 6, 7(C), and 7(E); further finding that agency's failure to timely process the request, which was the only issue that plaintiff raised in his brief, did not preclude summary judgment in agency's favor.    

Gordon v. Courter (D.D.C.) -- finding that DOJ's Criminal Division conducted an adequate search; properly withheld records under Exemptions 5, 6, and 7(C); satisfied the segregability requirements of FOIA; and satisfied its obligations under the Privacy Act.  The court also concluded that plaintiff's amended Complaint would cause undue delay, fundamentally alter the nature of the suit, and likely be futile.

Judicial Watch v. U.S. Dep't of Justice (D.D.C) -- concluding that DOJ properly invoked the attorney-work product privilege in response to request for records "detailing the number of hours DOJ Attorney Barbara Bosserman expended on the investigation of the Internal Revenue Service targeting of conservative organizations seeking tax-exempt status in the 2010 and 2012 election cycles."

Summaries of all cases since April 2015 are available here.