Court opinions issued August 28, 2015

Cause of Action v. Internal Revenue Serv. (D.D.C.) -- granting in part and denying in part the parties' motions for summary judgment.  With respect to plaintiff's request for FOIA-related records pertaining to Section 6103 of Internal Revenue Code, the court held that the IRS conducted an adequate search and that its withholdings from these records were proper under Exemption 5 (deliberative process privilege).  As for plaintiff's request for any requests by the Executive Office of the President for tax information, the court held that IRS properly withheld "tax check" records under Section 6103, but that: (a) any other requests would not be protected by Section 6103, and (b) the search described by the agency was inadequate. Regarding plaintiff's request for any federal agency requests for tax information, the court rejected the IRS's argument that any responsive records would be protected by Section 6103 and/or Exemptions 6 and 7(C).  

Note:  Mr. Blutstein co-represented Cause of Action in this case.

Envtl. Integrity Project v. Small Bus. Admin. (D.D.C.) -- determining after in camera  review that SBA properly withheld all records responsive to plaintiff's request pursuant to the deliberative process privilege. 

Summaries of all cases since April 2015 are available here.

Court opinions issued August 26, 2015

Ibeagwa v. Internal Revenue Serv. (W.D. Wis.) -- denying pro se plaintiff's motions for costs and attorney fees.  The court found that IRS's disclosure of one of two requested documents after the filing of lawsuit made plaintiff eligible for costs, but that plaintiff was not entitled to costs because disclosure of his tax records would not benefit the public. With respect to attorney fees, the court found that a pro se party is not eligible for attorney fees, that plaintiff's motion was untimely, and that disclosure of his tax records would not benefit the public.  

Love v. U.S. Dep't of Justice (D.D.C.) -- ruling that the Drug and Enforcement Administration properly refused to confirm or deny existence of records pertaining to a third party, and that it properly withheld records pursuant to Exemptions 7(C), 7(D), and 7(E).

Sack v. Cent. Intelligence Agency (D.D.C.) -- granting CIA's motion for reconsideration and vacating the court's earlier Order extending plaintiff's time to file a notice of appeal, because plaintiff's motion for an extension of time had been filed too late.

Summaries of all cases since April 2015 are available here.

FOIA News: Administration is evading the law, reports National Review

How Obama Officials Dodge the Freedom of Information Act

By John Fund, National Review, August 28, 2015

During the Watergate era, delaying tactics by government officials were dubbed “stonewalling.” Obama-administration officials seem to have added an element of farce to their cover-ups by literally going to the dogs.  This week, the IRS admitted in court, in response to a Freedom of Information Act lawsuit brought by the watchdog group Judicial Watch, that Lois Lerner was even more secretive than we thought. Lerner, the IRS official who resigned in 2013 after allegedly discriminating against applications for nonprofit status from conservative groups, conducted much of her IRS business on a personal e-mail account in the name of her dog, Toby Miles.

Tom Fitton, the president of Judicial Watch, says there is evidence that the Obama Justice Department and the IRS have known about the Toby Miles account for some time but chose not to tell the court. A House committee months ago urged that a criminal inquiry of Lerner be initiated by the Justice Department, but so far it has been ignored. 

Read more here.

Court opinions issued August 24-25, 2015

August 25, 2015

Cause Action v. Fed. Trade Comm'n (D.C. Cir.) -- reversing district court's decision that the last of plaintiff's three requests was moot for purposes of determining its fee status; further clarifying the definition of a "representative of the news media" and ordering district court to evaluate plaintiff's status in light of D.C. Circuit's opinion.  See related article here.    

[Note: Mr. Blutstein co-represented Cause of Action in this appellate case] 

Willaman v. Erie Bureau of Alcohol Tobacco Firearms (3rd Cir.) -- affirming ATF's determination that plaintiff's request was not reasonably described inasmuch as it consisted of a question, which FOIA does not require an agency to answer.

August 24, 2015

Judicial Watch v. Internal Revenue Serv. (D.D.C.) -- granting IRS's motion for summary judgment after finding that records located by the agency consisted of "return information," which plaintiff had stipulated would not be responsive to its request; further finding that plaintiff conceded the adequacy of the agency's search by failing to oppose the agency's arguments pertaining to the subject.    

Summaries of all cases since April 2015 are available here.

Q&A: requesting expedited processing and waiver of fees

Q.  I recently submitted a FOIA request to the Centers of Medicare & Medicaid Services.  In its acknowledgment letter, the agency informed me that:  (a) I must follow 5 U.S.C. § 552(a)(6)(E)(vi) if I want expedited processing; and (b) I must provide a detailed explanation of how disclosure would benefit the public interest if I want a fee waiver.  How should I handle these two issues?

A.  For tips about writing requests for expedited processing and a waiver of fees, you might wish to read the following articles:  (1) Nate Jones, FOIA Tip 15: Writing a Good Request Part 5, or Expedited Processing and other Timing Issues, Nat'l Sec. Archive (Apr. 8, 2010), and (2) FOIAdvocates, FOIA Fee Waivers.

FOIA News: NRC found not guilty of FOIA political interference

Agency watchdog finds NRC political appointees didn't interfere with FOIA requests

By Ryan McDermott, FierceGovernment, Aug. 26, 2015

A new audit found that political appointees at the Nuclear Regulatory Commission didn't meddle with or delay responses to Freedom of Information Act requests.

Congress requested that the NRC inspector general make sure that political appointees, also known as non-career officials, had not interfered with the FOIA process and inhibited transparency.

In its Aug. 18 report (pdf), the IG looked into the involvement of political appointees in the commission's FOIA response process from Jan. 1, 2007, to the present. From 2007 through 2014, NRC received a total of 2,995 FOIA requests – an average of 333 per year.

Read more here.

FOIA News: As legacy media cuts back on FOIA, digital-only news outlets step in

As legacy media cuts back on FOIA, digital-only news outlets step in

By Trevor Timm, Columbia Journalism Review, Aug. 25, 2015

Ask any journalist and they’ll tell you the Freedom of Information Act process is broken. Denials are at record highs, navigating the bureaucracy can be a nightmare, and the federal agencies recently killed a modest reform bill. But a series of FOIA lawsuits also have just shown how the 50-year-old transparency law can still be indispensable. And absent any change in the law, the best way for news organizations to make sure it stays relevant is to use it innovatively and aggressively.

A study by Syracuse’s Transactional Records Access Clearinghouse showed that, with the exception of The New York Times, no legacy news organization sued the government under FOIA in 2014. But where print newspapers have largely faded away, digital-only news organizations—including some that are foolishly caricatured as mere meme generators and gossip mags—are thankfully starting to spend the time and money to fill the gap.

Read more here.

DC Circuit ruling clarifies standards for news media status

Cause of Action v. Federal Trade Commission

Appeal from the United States District Court for the District of Columbia

(No: 1:12-cv-00850) 

Read the decision here.

FOIA News: Court upholds broad FOIA fee exemption for media & groups

Court upholds broad FOIA fee exemption for media & groups

By Josh Gerstein, Politico, Aug. 25, 2015

Advocacy groups and non-traditional news outlets should have an easier time avoiding fees under the Freedom of Information Act under a decision issued Tuesday by a federal appeals court in Washington.

The ruling from a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said the Federal Trade Commission and a district court had been too dismissive of fee waivers sought by a fledgling conservative group, Cause of Action, when it filed FOIA requests with the FTC.

D.C. Circuit Judge Merrick Garland emphasized that web-based publishers are as entitled to waivers as newspapers, that outlets without a following by a broad swath of the general public can qualify for waivers and that organizations that pass analyzed government documents to media outlets can be classified as members of the news media under the federal public records law.

Read more here.

FOIA News: Why it's OK for taxpayers to 'snoop' on scientists

Why it's OK for taxpayers to 'snoop' on scientists

By Charles Seife and Paul Thacker, Los Angeles Times, Aug. 21, 2015

If the public pays your salary, citizens have the right — within limits — to see what you're doing. That's the principle at the core of the federal Freedom of Information Act and of the many similar state freedom of information laws.

Although politicians like Hillary Rodham Clinton get the most attention when congressional inquiries and FOIA requests turn up something unsavory, it's not just civil servants or elected officials who run the risk of embarrassment. A great deal of scientific research is done on the public dime — directly funded through government grants or indirectly via academics working at public institutions — which means some scientists also are subject to transparency laws.

Generally speaking, in the last decade or so, the research community has been moving toward increased transparency, particularly when it comes to any financial entanglements that might cast doubt upon a scientist's objectivity. The backlash, however, has begun, and calls to reverse the trend are coming from some surprising places.

Read more here.