Court opinions issued Sept. 21, 2015

Fowlkes v.  Bureau of Alcohol, Tobacco, Firearms & Explosives (D.D.C.) -- finding that the Executive Office for United States Attorneys conducted an adequate search for criminal records concerning plaintiff; further finding that ATF properly withheld a firearm trace report (Exemption 3)] and codes and files numbers from a law enforcement information system (Exemption 7(E)).  The court, however, rejected the government's argument that the name of a judge who convened a grand jury could be protected under Exemption 7(C).

Elkins. v. Fed. Aviation Admin. (D.D.C.) -- granting motion for reconsideration based upon FAA's in camera declarations;  concluding that agency properly invoked Exemption 7(E) to protect an airplane radar plot that was compiled in connection with a classified investigation. 

Summaries of all cases since April 2015 are available here.

FOIA News: Office of Gov't Ethics issues final FOIA regs

Today, the Office of Government Ethics issued a final rule that updates and streamlines its Freedom of Information Act regulation to reflect OGE's existing policy and practice.  It also extends a requester's time to file an administrative appeal (from 30 to 45 days), makes administrative changes, and updates cost figures for calculating and charging fees.  

OGE revised its proposed regulation in part in response to comments submitted by the Office of Government Information Services.  The effective date of the amended regulations is October 22, 2015.  

Read more here.

FOIA News: FBI refuses to confirm or deny Clinton email investigation

FBI rejects judge's request for Clinton email info

By Josh Gerstein, POLITICO, Sept. 21, 2015

The FBI on Monday rebuffed a federal judge's request for information on the inquiry it is conducting into former Secretary of State Hillary Clinton's private email account and server, raising the question of whether the courts or Congress will take more forceful action to try to secure data from Clinton's email system.

About a month ago, U.S. District Court Judge Emmet Sullivan ordered the State Department to reach out to the FBI to address a Freedom of Information Act request by the conservative group Judicial Watch regarding Clinton aide Huma Abedin's employment arrangements and to report on arrangements for the FBI to share information about the ongoing investigation.

In a terse letter Monday, FBI General Counsel James Baker appeared to reject the request .

Read more here.

FOIA News: Judge Rejects Border Patrol's FOIA Arguments

Judge Rejects Border Patrol's FOIA Arguments

By Mike Heuer, Courthouse News Service, Sept. 21, 2015

A federal judge refused to dismiss a class action accusing U.S. Customs and Border Protection of a pattern and practice of delaying response to Freedom of Information Act requests.

Immigration attorneys and their clients sued U.S. Customs and Border Protection in March for missing the deadline to respond to FOIA requests - 38,000 of them. 

The government claimed that its failure to respond was not actionable.

The "main thrust" of the government's motion to dismiss "is that violation of the FOIA response deadline is not a cognizable claim," U.S. District Judge James Dosanto wrote on Sept. 17.

Dosanto didn't buy it.

Read more here.  Copy of decision is available in Court Opinions (Sept. 17, 2015).   

Court opinions issued Sept. 16 thru Sept. 18, 2015

Sept. 18, 2015

Stalcup v. Dep't of Def. (D. Mass.) -- ruling that Missile Defense Agency conducted a reasonable search for records concerning the 1996 crash of TWA flight 800, but that the Joint Staff and the Office of the Secretary of Defense had not adequately described its search methodology.  

Barouch v. U.S. Dep't of Justice (D.D.C.) -- determining that Bureau of Alcohol, Tobacco, Firearms, and Explosives properly withheld grand jury subpoena and related records under Exemption 3 and Rule 6(e) of Federal Rules of Criminal Procedure, and that no portion of those records was reasonably segregable. 

Sept. 17, 2015

Maryland v. U.S. Dep't of Veterans Affairs (D.D.C.) -- dismissing plaintiff's lawsuit after finding that: (1) plaintiff's dispute about fee category was moot because agency ultimately did not charge any fees; (2) agency properly invoked Exemption 6 to withhold the names of individuals that were contained in the email addresses of businesses whose applications were rejected for inclusion on the VetBiz database; (3) agency segregated and released non-exempt material; and (4) pro se plaintiff failed to administratively appeal certain issues or to raise others in his Amended Complaint or briefs.    

Brown v. U.S. Customs & Border Prot. (N.D. Cal.) -- denying government's motion to dismiss plaintiff's claim that agency violated FOIA by engaging in a pattern and practice of failing to respond to FOIA requests within the statutory timeline; further noting that the agency's response to dispositive case law "could not be less persuasive."

Sept. 16, 2015

Cause of Action v. Treasury Inspector Gen. for Tax Admin. (D.D.C.) -- granting government's summary judgment motion after court had rejected agency's Glomar response and ordered agency to search for records pertaining to any investigation into the unauthorized disclosure of return information to anyone in the Executive Office of the President.  The court found that agency's affidavits "could certainly [have been] more detailed" in describing search for records, but that there was "just enough" to rule in agency's favor.  Further, the court concluded that records located by agency were not responsive to the request, because plaintiff had clarified that it sought only records of investigations that had resulted in findings of unauthorized disclosure. 

Human Rights Watch. v. Dep't of Justice Fed. Bureau of Prisons (S.D.N.Y) -- granting in part and denying in part parties' motions for summary judgment concerning records about the detention conditions of individuals charged with or convicted of terrorism and terrorism-related offenses.  The court largely upheld the agency's use of Exemptions 3, 6, and 7(C) to withhold certain information from five categories of requested records, but ordered agency to release discrete portions of records and to transmit certain information to court for in camera inspection.

 Summaries of all cases since April 15, 2015, are available here.

FOIA News: OGIS issues report on FEMA's FOIA program

Today the Office of Government Information Services (OGIS) issued a compliance report concerning the Federal Emergency Management Agency's FOIA program.  OGIS’s three primary findings are:

(1) FEMA’s FOIA Office needs to improve management and oversight controls;

(2)  Additional steps are needed to fully benefit from investments in technology to improve tracking, processing, and proactive disclosure; and

                 (3) Further steps are needed to improve communication.

Read full report here.

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.