Q&A: can emails on Illinois government server be exempt as "private"?

Q.  A public official in Illinois is claiming that five "private" emails are exempt on a government server.  Is it possible to determine whether the claim is valid without obtaining a court subpoena?

A.  The Illinois Freedom of Information Act (FOIA) applies to "public records," which means, in relevant part, "all records . . . pertaining to the transaction of public business."  Thus, the mere fact that an email is sent or received on a government device does not automatically mean that the email is subject to FOIA.  For example, if an Illinois government employee were to email a grocery list to his or her spouse, the FOIA would not apply because the email does not pertain to the transaction of public business.  If you wish to challenge the agency's decision (i.e., file a lawsuit), the agency will have the burden of proving "by clear and convincing evidence" that the withheld records are exempt.  Short of a lawsuit, you might ask the agency whether it would be willing to provide you with an index that describes the withheld material in more detail.    

FOIA News: DOJ releases guidance for 2016 Chief FOIA Officer reports

Since 2010, the Office of Information Policy (OIP) has required agency Chief FOIA Officer Reports to address five key areas:

1. Applying the Presumption of Openness,
2. Ensuring that there are Effective Systems for Responding to Requests,
3. Increasing Proactive Disclosures,
4. Increasing the Utilization of Technology, and
5. Improving Timeliness and Reducing any Backlogs.

Today, OIP issued guidelines that include new questions on training, FOIA Requester Service Centers and FOIA Public Liaisons, still interested inquiries, and posting records online.  The twenty-nine agencies that were designated as "high-volume" -- 1,000 or more requests received in most recent fiscal year -- must submit their  reports to OIP by January 15, 2015.  The remaining agencies must submit draft reports by February 5, 2016.

FOIA News: Shall I compare thee to a newspaper?

Shall I compare thee to a newspaper?

By Adam Marshall, Reporters Committee for Freedom of the Press

DC Circuit provides expansive view of who qualifies as news media in the digital age and when they deserve fee waivers under FOIA

Last week the D.C. Circuit released its opinion in Cause of Action v. FTC, a Freedom of Information Act case that will have far-reaching and beneficial implications for journalists and organizations seeking fee waivers and reductions when making records requests.

The Reporters Committee for Freedom of the Press, joined by eight other news media organizations, filed an amicus brief in support of the requester and participated in oral arguments before the court.

At issue in the case was the Federal Trade Commission’s determination that Cause of Action, a recently formed non-profit organization, did not qualify for either a fee waiver or a fee reduction as a member of the news media for its FOIA requests sent in the weeks and months after its creation.

Read more here.

FOIA News: FOIA Fee Waivers Protected

FOIA Fee Waivers Protected

By Spender Brignac, Project On Government Oversight Sept. 14, 2015

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit unanimously protected the Freedom of Information Act’s (FOIA) public interest fee waiver and news media fee classification, preventing federal agencies from using fees as a weapon against public access to government information.

Cause of Action, an advocacy group promoting transparency and accountability, submitted a FOIA request to the Federal Trade Commission about changes to “product-endorsement guides” and “documents concerning the FTC’s history of granting public-interest fee waivers.” The FTC categorized Cause of Action as commercial and refused to grant its request for a public interest fee waiver or, in the alternative, to be classified as a member of the media. Cause of Action then filed a lawsuit.

The district court agreed with the FTC’s FOIA policy, and Cause of Action appealed the district court ruling. The U.S. Court of Appeals for the D.C. Circuit overturned the district court decision and remanded the case to the trial court with new criteria for interpreting FOIA.

Read more here.

Q&A: bankruptcy judges

Q.  I submitted a FOIA request to the DOJ to obtain the credentials of two federal bankruptcy judges.  I received an answer from the Office of Legal Policy (OLP) claiming that such records are kept at the Administrative Office of the U.S. Courts -- and under their policy the records cannot be disclosed to the public.  I believe these records are not exempt, but may not exist.  If the records exist, who has custody and how can I obtain a copy?

A.  I am inclined to agree with OLP's response.  OLP works with the Attorney General in advising the President on nominations for Article III judgeships.  Bankruptcy judges, however, are not nominated by the President and confirmed by Senate as set forth in Article III of the U.S. Constitution.  Rather, they are appointed to renewable fourteen-years terms by U.S. court of appeals for each circuit pursuant to Article I of the Constitution.  Therefore, the Administrative Office of the U.S. Courts, not OLP, is the most likely custodian of the judicial records you seek.  Unfortunately, the judiciary branch is not subject to Freedom of Information Act.  See Banks v. DOJ, 538 F. Supp. 2d 228, 231-32 (D.D.C.  Mar. 16, 2008) (U.S. Probation Office and Administrative Office of the U.S. Courts); Wayne Seminoff Co. v. Mecham, No. 02-2445, 2003 U.S. Dist. LEXIS 5829, at *20 (E.D.N.Y. Apr. 10, 2003) ("[T]he Administrative Office of the United States Courts is not an agency for purposes of FOIA."), aff'd, 82 F. App'x 740 (2d Cir. 2003).  

By statute, bankruptcy judges must be lawyers. Thus, if a judge's biography is not posted on the court's website, you can at least find his or her educational background in publicly available attorney directories, e.g., a State bar directory or Martindale Hubbell.  If you are interested in further information about the selection process for bankruptcy judges, you might wish to read the following report on the subject from the Institute for the Advancement of the American Legal System. 

Court opinions issued Sept. 11, 2015

Cleveland v. U.S. Dep't of State (D.D.C.) -- determining that State Department conducted an adequate search for records relating to a human rights report about Cameroon, and that it properly withheld certain information under Exemption 5 (deliberative process privilege) and Exemption 6.

People for Ethical Treatment of Animals v. Nat'l Institutes of Health (D.D.C.) -- awarding plaintiff $22,724.03 in attorneys fee and costs, which represented 10 percent of amount that plaintiff sought.  The court determined that plaintiff was eligible for fees because the D.C. Circuit had rejected in part agency's Glomar response, thus changing the legal relationship between the parties.  Further, the court found that plaintiff was entitled to fees even though agency's actions were reasonable, because plaintiff's interests in seeking records were for public benefit and non-commercial.  Because plaintiff prevailed on only a narrow portion of its litigation, however, the court concluded that plaintiff should receive only 10 percent of requested fees.  

Gahagan v. U.S. Citizenship & Immigration Servs. (E.D. La.) -- finding that:  (1) agency's search was adequate; (2) agency declarants were not required to have personal knowledge of search; (3) plaintiff was not entitled to a Vaughn Index from USCIS because another DHS component had processed the records and already provided plaintiff with an index; and (4) an in camera review of withheld records was unnecessary.

Summaries of all cases since April 2015 are available here.

FOIA News: OGIS is Atwitter—and on Twitter

OGIS is Atwitter—and on Twitter  

The OGIS Blog, Sept. 11, 2015

We have some exciting news to share: on Monday, September 14 we will officially launch our Twitter feed. If you can’t wait till Monday, please feel free to go ahead and follow @FOIA_Ombuds.

To celebrate, we will host a lunchtime FOIA trivia challenge every day between Monday September 14 and Wednesday September 30. At noon we will tweet a question about FOIA, and we’ll retweet the first correct answer. Join the fun using #FOIATrivia!

Read more here.

FOIA News: 9/11

14 Years After 9/11, Secrecy Shrouds Many Records

Dan Christensen, Miami Herald, Sept. 10, 2015

Seven weeks after the end of the massive cleanup at Ground Zero in lower Manhattan in 2002, a legal investigator for the families of 9/11 victims requested a copy of an arrest warrant issued by Interpol for fugitive al-Qaida leader Osama bin Laden.

Here’s the reply she got from the Justice Department’s Interpol-U.S. National Central Bureau:

“Release of information about a living person without that person’s consent generally constitutes an unwarranted invasion of personal privacy in violation of the Freedom of Information Act. You must submit an authorization [privacy waiver] signed by Osama bin Laden, consenting to the USNCB’s release to you of any record that it may have pertaining to him.”

The Justice Department’s assertion of privacy rights for bin Laden is a small rock in the wall of official secrecy that continues to hide 9/11 documents held by the FBI, CIA and other government entities on the 14th anniversary of the terrorist attacks.

Read more here.

FOIA News: State Department Asks to Delay Clinton Aides’ Records Release Until 2016

State Department Asks to Delay Clinton Aides’ Records Release Until 2016

By Byron Tau, Wall Street Journal, Sept. 9, 2015

Department’s attorneys say resources for fulfilling public-information requests are ‘strained to the limit’

The State Department is proposing to delay the release of records from top aides to former Secretary of State Hillary Clinton into 2016, a scenario that would push the stream of disclosures and the legal drama surrounding them well into the presidential election season.

The department’s attorneys described the resources devoted to fulfilling public requests for the records as “strained to the limit” and asked a federal court late Tuesday for permission to delay the release of records from Mrs. Clinton’s aides until January at the earliest.

The State Department had initially been ordered by a federal judge to start producing documents from Mrs. Clinton’s aides by last week—a deadline the department missed.

If approved by a judge, such a timetable would ensure that records from Mrs. Clinton’s aides will continue to be released well into next year, when voters will head to the polls in the Republican and Democratic primaries and the November 2016 general election.

FOIA News: State Dep't appoints "transparency coordinator"

Secretary of State John Kerry announced  today the appointment of Ambassador Janice Jacobs as the Department’s "Transparency Coordinator."  She will be charged with "improving document preservation and transparency systems."   Secretary Kerry's full statement is available here.