FOIA News: Congress inquires about State Dep't FOIA conflicts

Chuck Grassley questions potential conflict at State on email probe

By Rachael Bade, POLITICO, Aug. 19, 2015

A Senate committee investigating Hillary Clinton’s email controversy is questioning whether State Department lawyers’ connections with her counsel, David Kendall, created a conflict of interest — a suggestion the State Department immediately denied.

Senate Judiciary Chairman Chuck Grassley (R-Iowa), in a letter to Secretary of State John Kerry Wednesday, inquired about the role State attorney Catherine Duval has played in classifying Freedom of Information Act requests for information.

POLITICO reported several weeks ago that Duval was formerly an attorney at Williams & Connolly, the same white-shoe law firm where Kendall works.

Read more here.

Court opinions issued August 17-18, 2015

August 18, 2015

Bartko v. U.S. Dep't of Justice (D.D.C.) -- ruling that the Office of Professional Responsibility properly withheld records of its investigation into misconduct by an Assistant United States Attorney pursuant to Exemptions 5, 6, and 7(C).  

August 17, 2015

Pinson v. U.S. Dep't of State (D.D.C.) -- finding that plaintiff's request would have required the Department of Justice's Civil Division to search for more than the two free hours that plaintiff was permitted.    

Conway v. U.S. Agency for Int'l Dev. (D.D.C.) -- concluding that USAID and U.S. Army failed to establish that they conducted adequate searches for records concerning nurse killed in Vietnam by U.S. soldier in 1967.  

Wright v. U.S. Dep't of Justice (D.D.C.) -- determining that the Criminal Division conducted a reasonable search for requested records and properly withheld them under Exemption 3 in conjunction with 18 U.S.C. §§ 2510-2521.

Summaries of all cases since April 2015 are available here.

Court opinions issued August 14, 2015

Hamdan v. U.S. Dep't of Justice (9th Cir.) -- affirming district court's ruling that FBI and State department conducted adequate searches and properly withheld records under Exemptions 1, 3, and 7(E); remanding case for district court to determine whether the Defense Intelligence Agency released all reasonably segregable information.

Consumers Council of Mo. v. Dep't of Health & Human Servs. (E.D. Mo.) -- denying plaintiff's motion for attorney fees because plaintiff did not show that its lawsuit was the catalyst for agency's disclosure of records.

 Summaries of all cases since April 2015 are available here.

FOIA News: Court orders expedited hearing on Judicial Watch request for discovery re: Clinton email

Is Hillary sworn deposition as to server next in Judicial Watch FOIA case?

By William A. Jacobson, Legal Insurrection, Aug. 17, 2015

Will Hillary Clinton be subject to a deposition under oath as to her use of various electronic devices and servers as part of the Judicial Watch FOIA federal lawsuit seeking records as to Huma Abedin’s outside employment?

That is a distinct possibility in light of the State Department’s apparent failure to comply with a Court order as to its efforts to search Hillary’s original server for records.

The Court, at the request of Judicial Watch, has expedited a status conference originally scheduled for September 10, to August 19:

"MINUTE ORDER. In light of the State Department’s August 14, 2015 Status Report and Judicial Watch’s August 17, 2015 reply thereto, a status hearing will be held on Thursday, August [19], 2015 at 12:00 p.m. in Courtroom 24A. The State Department shall file a reply to Judicial Watch’s August 17, 2015 response no later than 12:00 p.m. on August 19, 2015. Signed by Judge Emmet G. Sullivan on August 17, 2015. (lcegs4) (Entered: 08/17/2015)"

Read more here.

FOIA News: State Department Finds Thousands of Philippe Reines Emails It Claimed Did Not Exist

State Department Finds Thousands of Philippe Reines Emails It Claimed Did Not Exist

By J.K. Trotter, Gawker, Aug. 17, 2015

Earlier this year, Gawker Media sued the State Department over its response to a Freedom of Information Act request we filed in 2013, in which we sought emails exchanged between reporters at 33 news outlets and Philippe Reines, the former deputy assistant secretary of state and aggressive defender of Hillary Clinton. Over two years ago, the department claimed that “no records responsive to your request were located”—a baffling assertion, given Reines’ well-documented correspondence with journalists. Late last week, however, the State Department came up with a very different answer: It had located an estimated 17,000 emails responsive to Gawker’s request.

On August 13, lawyers for the U.S. Attorney General submitted a court-ordered status report to the U.S. District Court of the District of Columbia in which it disclosed that State employees had somehow discovered “5.5 gigabytes of data containing 81,159 emails of varying length” that were sent or received by Reines during his government tenure. Of those emails, the attorneys added, “an estimated 17,855” were likely responsive to Gawker’s request:

Read more here.

FOIA News: State Dept. won't search Hillary Clinton server

State Dept. won't search Hillary Clinton server

By Anna Palmer, Politico, Aug. 14, 2015

The State Department is not planning to search Hillary Clinton’s email server as part of a Freedom of Information Act lawsuit brought by a conservative watchdog group, according to a court record filed Friday afternoon.

The State Department said it has made a good faith effort to respond to Judicial Watch’s FOIA request for records about long-time Clinton aide Huma Abedin’s employment status. It says that it is not in possession of the server, which has been turned over to the Justice Department by Clinton’s attorney.

The State Department also cited Clinton’s recent certification under penalty of perjury that the 55,000 documents she turned over are the only emails that “were or potentially were federal records” as the basis for why no further search was necessary. The State Department said that they have already done a search of the emails in their possession and found no relevant documents.

Read more here.

FOIA News: Final FOIA regs issued by Dep't of Housing & Urban Dev.

On August 17, 2015, the Federal Register will publish a final rule that revises HUD's FOIA regulations. This final rule follows publication of HUD's May 31, 2013, proposed rule and takes into consideration the public comments received on the proposed rule.  HUD's final rule will become effective September 16, 2015.

Court opinions issued August 12, 2015

Detroit Free Press v. U.S. Dep't of Justice (6th Cir.) -- Noting that it was bound by its 1996 decision, the Court of Appeals for Sixth Circuit affirmed that U.S. Marshals Service must release booking photographs of Detroit-area police officers indicted on federal charges.  The court, however, urged the full panel of the Sixth Circuit to reconsider the issue of whether Exemption 7(C) applied to such records in light of contrary decisions in other circuits.

Leopold v. Dep't of Justice (D.D.C.) -- ruling that DOJ's search for certain records concerning drones was inadequate because it interpreted the term "Obama administration" to include EOP employees only and failed to consider certain high-level cabinet officials; further ruling that agency properly invoked Exemption 3 to withhold portions of a "White Paper," and that all but a few Exemption 1 redactions to the same document also were proper.

Summaries of all cases since April 2015 are available here.

FOIA Advisor's Allan Blutstein Quoted in National Review

Will Huma Abedin Survive the Clinton Scandal Vortex?

By Brendan Bordelon, National Review, Aug. 12, 2015

That request remains unfulfilled, despite the Judiciary Committee chairman’s numerous inquiries over the past two years. Last week, the senator said the department wouldn’t even return his staff’s phone calls. Allan Blutstein, a former government FOIA attorney, says that the State Department’s delay “seems unusual,” since documents requested by the chairperson of a congressional committee are generally released expeditiously, absent claims of executive privilege. “Most agencies, to maintain effective relations, will process those requests as quickly as practicable,” he says. “Two years is a long time not to respond to a committee chair’s request.”

Read more here.

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.