FOIA News: Sixth Circuit Panel Allows FOIA Request, Urges En Banc Consideration

Sixth Circuit Panel Allows FOIA Request, Urges En Banc Consideration

By Ryan Goellner, The National Law Review, Aug. 21, 2015

Last week, in a per curiam opinion in Detroit Free Press v. U.S. Department of Justice, the Sixth Circuit affirmed a decision granting the Free Press’s request for the mug shots of Detroit police officers facing federal charges. Although the case did not touch on the underlying charges against the officers, the panel took the unusual step of recommending to the full court that it reconsider the precedent that disposed of the case.

Read more here.

Court opinions issued August 21, 2015

Harvey v. Lynch (D.D.C.) -- finding that plaintiff's FOIA and Administrative Procedure Act (APA) claims were moot because plaintiff agreed that agency had released all non-exempt records; noting that APA claim also was moot because "a FOIA requester may not seek relief under the APA for a violation of FOIA or the governing FOIA regulations."

Patel v. Bureau of Prisons (D.D.C.) -- holding that BOP failed to adequately explain:  (1) how it searched for records in response to one of plaintiff's requests; (2) why it was unable to segregate non-exempt information from information that it withheld under Exemptions 6 and 7(C); and (3) that records it withheld under Exemption 5 were privileged.    

Summaries of all cases since April 2015 are available here.

Court opinions issued August 19-20, 2015

Aug. 20, 2015

Evans v. U.S. Dep't of the Interior (N.D. Ind.) -- denying plaintiff's motion for discovery because plaintiff failed to explain why it was needed in order to respond to agency's motion for summary judgment.

Aug. 19, 2015

Inst. for Policy Studies v. CIA (D.D.C) -- ordering the CIA to search for responsive records after finding that agency failed to establish that its operational files were exempt under 50 U.S.C. § 3141(f)(4)(A).  

Summaries of all cases since April 2015 are available here.

Q&A: Heat, fire, and water

Q.  To which component of the U.S. Dep't of Health and Human Services should I send a request concerning the Low Income Home Energy Assistance Program?

A.  You might wish to submit your request to HHS's Administration for Children & Families (ACF), which administers the program.  Here is information about submitting a request to ACF:  http://www.acf.hhs.gov/submit-a-foia-request.

Q.  How do I file a request to DC Fire and Emergency Management Services in Washington, D.C.?

A.  You may submit a FOIA request to D.C. Fire & EMS via this web portal:  https://foia-dc.gov/palMain.aspx.

Q.  How do I make FOIA request to the Coast Guard about an injury that occurred on a vessel in 2013.   

A.  To  submit a FOIA request to the U.S. Coast Guard, just follow the instructions here:  https://www.uscg.mil/foia/. 

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.