FOIA News: U.S. Supreme Court Asked To Review Secrecy Of DHS's Wireless Kill Switch Policy

U.S. Supreme Court Asked To Review Secrecy Of DHS's Wireless Kill Switch Policy

By Lisa Brownlee, Forbes, Aug. 12, 2015

Electronic Privacy Information Center (EPIC), an independent non-profit research center and high-profile privacy and freedom of information advocacy group, announced yesterday that it filed a petition with the U.S. Supreme Court asking the Court to review the U.S. Court of Appeals for the D.C. Circuit’s February 2015 judgment permitting the Department of Homeland Security to withhold releasing substantially all of a secret protocol that governs the shutdown of wireless networks in emergencies.

In a written statement about the litigation, EPIC President and Executive Director Marc Rotenberg commented, ”[t]he secret DHS policy to shut down cell phone service threatens public safety, open government, and First Amendment freedoms. EPIC has been seeking its public release for over four years. Now we are petitioning the U.S. Supreme Court after an earlier victory was overturned.” The protocol, entitled Standard Operating Procedure 303 (SOP 303) has been the subject of Freedom of Information Act (FOIA) litigation since February 2013, when EPIC filed suit after the denial by DHS of EPIC’s July 10, 2012 FOIA request for release of SOP 303 and related documentation.

In its Supreme Court petition, EPIC argues that, “[a]bsent Supreme Court review, the decision of the court of appeals could transform the FOIA from a disclosure to a withholding statute.”

Read more here.

FOIA News: The Google Search That Made the CIA Spy on the US Senate

The Google Search That Made the CIA Spy on the US Senate

By Jason Leopold, Vice News, Aug. 12, 2015

The draft apology letter Brennan wrote to Feinstein and Chambliss are two of more than 300 pages of documents [pdf at the bottom of this story] VICE News obtained in response to a joint Freedom of Information Act (FOIA) lawsuit filed against the CIA with Ryan Shapiro, a historian and doctoral candidate at the Massachusetts Institute of Technology who specializes in national security research. We sued the CIA seeking a wide range of documents related to the allegations that the agency had spied on the Intelligence Committee and hacked into their computer network. While the CIA turned over some records, it also withheld thousands of pages, citing nearly every exemption under FOIA.

After VICE News received the documents, the CIA contacted us and said Brennan's draft letter had been released by mistake. The agency asked that we refrain from posting it.

We declined the CIA's request.

Read more here.

FOIA News: Mugshots revisited

Should booking photos be subject to FOIA requests?

By Jonathan H. Adler, The Wash. Post., Aug. 12, 2015

Today the U.S. Court of Appeals for the 6th Circuit upheld a request for booking photographs of criminal defendants sought under the Freedom of Information Act (FOIA) in Detroit Free Press v. USDOJ.  Existing circuit precedent mandated this result.  In their brief per curiam opinion, however, Judges Guy, Cook, and McKeague explained why they believe full 6th Circuit should reconsider this holding.  

Read more here.

Q&A: Museums in New York

Q. Are New York State chartered museums exempt from FOIA requests?

A. Whether New York's Freedom on Information Law ("FOIL") applies to an incorporated (i.e., chartered) museum depends upon the degree of control exercised by government officials.  For example, in 2005,  the Appellate Division affirmed a New York County Supreme Court case in which the court determined that the Metropolitan Museum of Art was outside FOIL's  coverage.  In considering its status in relation to that statute, the court found that:

the Museum is a not-for-profit educational corporation controlled by a Board of Trustees consisting of 40 self-elected individuals.  The City retains no authority to hire or fire the Museum’s Director or President, and no City representatives sit on the Executive Committee, although five of seven ex-officio Trustees are City officials.  Moreover, the Museum’s operating and capital budgets are primarily privately funded, and its budgets are not subject to City approval or public hearings.

Since, as the Supreme Court correctly held, the Museum is not controlled by municipal officials, there is no danger that they can act through the Museum in order to shield their actions from public scrutiny, and FOIL’s overriding purpose of promoting open and accessible government... a hallmark of a free society (Matter of Russo v. Nassau County Community College, 81 NY2d 690, 697, 603 NYS2d 294 [1993]), is not implicated [Metropolitan Museum Historic District v. DeMontebello, 20 AD3d 28 at 37-38, 796 NYS2d 64 at 71 (1st Dept. 2005)].

FOIA News: D.C. Circuit asked to compel search of White House employee's personal email account

Hidden Government Emails at the Epicenter of FOIA Lawsuit

Competitive Enterprise News Release, Aug. 10, 2015

In a lawsuit involving more hidden correspondence by government officials, the Competitive Enterprise Institute (CEI) on Monday filed the opening brief in its appeal of a court ruling that put the personal email account of the White House top science advisor, John Holdren, off-limits to the Freedom of Information Act (FOIA).

“There are a growing number of scandals concerning the use of private email accounts by top Obama administration officials,” said Sam Kazman, CEI general counsel. “The court ruling that we are appealing will only add to those scandals, because it legitimizes private email accounts as way to evade FOIA. While President Obama claims his administration is the most transparent in history, his officers seem to confuse being transparent with being invisible.”

CEI argues that FOIA applies to the work-related records of agency employees regardless of where they are stored.  Many agencies routinely instruct their staff to preserve any such documents that they might have on their personal email accounts.  In CEI’s case, however, John Holdren, the head of the White House Office of Science and Technology Policy (OSTP) either missed the memo or refused to issue it.

Read more here.

FOIA News: NARA's new FOIA ombudsman settles in

NARA's new FOIA ombudsman settles in

By Adam Mazmanian, FCW, Aug. 10, 2015

James Holzer is the new head of the Office of Government and Information Services, an office inside the National Archives and Records Administration charged with oversight of agency compliance with the Freedom of Information Act and government-wide FOIA policies. His first day on the job was Aug. 10.

The post has been vacant since November 2014, when Miriam Nesbit, the first person to hold the job of OGIS director, retired from federal service.

"Dr. Holzer's experience administering FOIA and his demonstrated commitment to transparency will benefit OGIS, the National Archives, and the American public," National Archivist David S. Ferriero said in a statement.

Read more here.

FOIA News: Hillary Clinton certifies email handover, but aides demur

Hillary Clinton certifies email handover, but aides demur

By Josh Gerstein, Politico, Aug. 8, 2015

Acting in response to a request from a federal judge, former Secretary of State Hillary Clinton Friday submitted her first official, formal certification under penalty of perjury that she had all her work-related email turned over to the State Department.

However, two aides to Clinton appear to have rebuffed parallel requests from U.S. District Court Judge Emmet Sullivan that they similarly certify that they'd turned over certain emails and other records in their possession relating to their work at State.

Last week, Sullivan ordered the State Department to ask Clinton, former Chief of Staff Cheryl Mills and former Deputy Chief of Staff Huma Abedin to personally vouch that they'd turned over all records responsive to a Freedom of Information Act request the conservative group Judicial Watch filed seeking information on Abedin's employment arrangements.

Read more here.

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).