Q&A: grand jury minutes in New York

Q.  I was indicted in [year redacted].  I did not testify before the grand jury even though all the other defendants were allowed to.  The charges against me were dropped after I cooperated with the DA and they realized I knew nothing about the case . . . .  I still don't know how I was indicted.  Can I get access to the grand jury minutes?  This took place in [redacted] New York.

A.  Minutes of grand jury proceedings in New York are not accessible under the Freedom of Information Law.  See the following opinion on the subject from New York's Committee on Open Government.  I do not know whether the records you seek still exist, but if you wish to petition a court for access, you might wish to review this recent decision in which a New York state appellate court affirmed the denial of access to grand jury minutes concerning Eric Garner.

Q&A: identity of complainant to Virginia sheriff's department

Q.  I live in [redacted] Virginia.  We had a sheriff's officer stop by our home this past week asking about a report of [redacted].  How can I get the name of who called the police?  Can I file a FOIA request, and if so, how?

A.   The sheriff's department is subject to Virginia's FOIA and you do not need to use a special form.  Here is a sample request letter.  Please note, however, that the sheriff's department is unlikely to release the source of its information. The identities of law enforcement sources are invariably protected even if the information provided is determined to be inaccurate.  For further information, you might wish to read this recent article on Virginia's treatment of criminal records under FOIA. 

Court opinions issued Sept. 1, 2015

Plunkett v. Dep't of Justice (D.D.C.) -- granting in part and denying in part the Executive Office for United States Attorneys' motion for summary judgment concerning convicted murderer's request for records about his prosecution. The court found that government's declarations did not fully address:  (1) whether two binders of material identified in an email were, in fact, reviewed for responsive documents, and if so, what was found; (2) which, if any, of the documents originally referred to the Bureau of Prisons for review were withheld and, if so, which FOIA exemption was applicable; and (3) the segregability of portions of one document that the government withheld in part.  The court, however, upheld the government's use of Exemptions 5 (attorney work-product), 7(C), and 7(D).  

Henry v. Dep't of Justice (N.D. Cal.) -- ruling that the FBI and various U.S. Attorney's Offices conducted adequate searches in response to plaintiffs' requests for records about themselves.  

Gilliam v. U.S. Dep't of Justice (D.D.C.) -- concluding that Criminal Division conducted a reasonable search for requested wiretap records and properly withheld records under Exemption 3 (in conjunction with 18 U.S.C. §§ 2510-2521), Exemption 5 (attorney work-product), and Exemptions 6 and 7(C). 

Gamboa v. Exec. Office for U.S. Attorneys (D.D.C.) -- finding that the Drug Enforcement Administration conducted an adequate search for requested joint task force records, and that the FBI properly withheld records under Exemptions 7(D) and 7(F).

Summaries of all cases since April 2015 are available here.

FOIA News: Judge sees rocky road for feds' plan to coordinate Hillary Clinton email lawsuits

Judge sees rocky road for feds' plan to coordinate Hillary Clinton email lawsuits

By Josh Gerstein, Politico, Sept. 3, 2015

The Justice Department is unlikely to succeed in its new effort to put dozens of Freedom of Information Act lawsuits related to Hillary Clinton's emails in front of a single judge, one judge handling such a case suggested Thursday.

"I don't know how successful you will be," U.S. District Court Judge Reggie Walton said during a hearing on a lawsuit brought by the conservative watchdog group Judicial Watch. "Some information I've heard indicates there may be a reluctance on the part of judges to go along with that because [some cases] are so far along" in the process, Walton added.

The Justice Department filed a motion Wednesday night (posted here), asking that a "coordinating judge" manage schedules for production and preservation of records in at least 32 pending FOIA lawsuits where plaintiffs are seeking or may be entitled to documents from the set of 54,000 pages of emails former Secretary of State Clinton returned to state last year or other sets of records former Clinton State Department aides Cheryl Mills, Jacob Sullivan, Huma Abedin and Philippe Reines returned in recent months on agency requests.

Read more here.

FOIA News: FOIA site MuckRock launches new efforts to let users track projects and contribute to reporting costs

FOIA site MuckRock launches new efforts to let users track projects and contribute to reporting costs

By Joseph Lichterman, NiemanLab, Sept. 3, 2015

MuckRock is also debuting project pages that will highlight groups of FOIA requests and let users follow specific stories.

For the past year, Beryl C.D. Lipton has been investigating the private prison system in the United States. She’s a reporter for MuckRock, a news site that covers government transparency issues and also helps its users access government documents.

Lipton has filed about 1,000 Freedom of Information Act requests, and she plans to visit some prisons to continue her reporting.

But between travel costs and fees for records requests, the type of reporting that Lipton is doing is expensive. And readers who are interested in following her work may have difficulty keeping track of all the different requests she’s made and documents she’s uncovered.

To address these concerns, MuckRock plans to debut two new features on Thursday that will make it easier for users to follow specific stories and contribute to reporting costs.

Read more here.

FOIA News: ICYMI, DOJ releases updated guidance on Exemptions 3 and 7(F)

On August 13, 2015, the Office of Information Policy issued updated versions of Exemptions 3 and 7(F) in its online "Department of Justice Guide to Freedom of Information Act."  The oldest sections of the Guide are now Proactive Disclosures, Exemption 4, Exemption 7(A), and Reverse FOIA, which have not been updated since 2009.  

Court opinions issued August 31, 2015

Rubman v. U.S. Citizenship & Immigration Servs. & U.S. Dep't of Homeland Sec. (7th Cir.) -- concluding that agency "failed to conduct an adequate search . . . when it unilaterally narrowed [plaintiff's] request for 'all documents' to a single, newly generated statistical table."

Citizens for a Strong New Hampshire v. Internal Revenue Serv. (D.N.H.) -- ruling that IRS properly withheld correspondence from taxpayers, through their Congressmen, pursuant to Exemption 3 and Section 6103 of Internal Revenue Code.  The court further determined that a genuine factual dispute existed about the adequacy of the agency's search, and it stated that it would schedule a conference of the parties to discuss prospect of a rare FOIA trial. 

Agolli v. Office of Inspector Gen. (D.D.C) -- dismissing plaintiff's claims stemming from her 2006 FOIA request because the six-year statute of limitations ran before she filed suit; further finding that the Department of Justice's Office of Information Policy conducted an adequate search for records in response to plaintiff's 2014 request.

Summaries of all cases since April 2015 are available here.

Q&A: college police records

Q. If I submit a request to a private college in Massachusetts for a copy of its police logs, will it need to comply and what is the response deadline?

A.  No.  In 2006, the Massachusetts Supreme Court held that the records of Harvard's campus police were not subject to the State's open records law.  Here is a link to the court's decision:  http://masscases.com/cases/sjc/445/445mass745.html. 

FOIA News: Feds move to consolidate lawsuits over Hillary Clinton emails

Feds move to consolidate lawsuits over Hillary Clinton emails

By Josh Gerstein, Politico, Sept. 1, 2015

The Justice Department is preparing to ask a federal judge to consolidate an unwieldy flurry of pending lawsuits which demand copies of emails sent or received by Hillary Clinton or her top aides, sources told POLITICO Tuesday.

The planned move raises the possibility that dozens of Freedom of Information Act lawsuits could be placed in front of a single judge--at least for a a period of time--in order to avoid conflicting schedules for the release of records.

The proposed action is not expected to alter plans for monthly public releases of Clinton's emails, but could temporarily halt orders to produce emails her aides have turned over to the State Department in recent weeks in response to the agency's requests. Justice plans to ask that disclosures of those records be put on hold until the motion to coordinate the cases is resolved.

Because of that potential delay, at least some of the FOIA litigants are expected to fight the consolidation move.

Read more here.

FOIA News: More Clinton emails released in "Vice" FOIA lawsuit

Emails show Hillary's political sleuthing

By Josh Gerstein, POLITICO, September 1, 2015

A new batch of Hillary Clinton's emails made public by the State Department Monday night show her expressing interest in the presidential aspirations of Gen. David Petraeus, who ultimately took a job as CIA director in the Obama administration instead of running for president in 2012 and was then driven out of government by scandal.

Clinton--who's now the frontrunner for the Democratic presidential nomination next year--sounded intrigued when her longtime friend Sidney Blumenthal reported to her on a Saturday morning in February 2010 that prominent Washington foreign policy blogger Steve Clemons said Petraeus was talking frankly about the possibility of running for the White House.

"Clemons had dinner this week with Petraeus, who freely talked about running for president," Blumenthal wrote to Clinton.

"Will he write about Petraeus?" Clinton wrote back five minutes later.

Moments later, Blumenthal sent Clinton Clemons' post mentioning the off-the-record dinner and discussing the relative political merits of Petraeus, Vice President Joe Biden and Clinton herself.

"Clemons... told me more detail about [Petraeus'] attitude and interest," Blumenthal said, adding a couple of nuggets.

Read more here.