FOIA News: FOIA battle erupts at West Point

West Point women fire back at congressman

By Rebecca Kheel, The Hill, Sept. 24, 2015

A group of female West Point graduates is pushing back on a congressman who asked for the records of the first female Army Ranger School graduates by demanding his Ranger School records.

“If he thinks that Rangers lie and standards are arbitrarily ignored, maybe that was his experience,” Sue Fulton, who was in the first West Point class to include women, told the Army Times. “Maybe we should look into what his experience was.”

On Thursday, the West Point women submitted a Freedom of Information Act request for the Ranger School records of Rep. Steve Russell (R-Okla.), the Army Times reported.

Last week, Russell sent a letter to Army Secretary John McHugh asking for documents on the Ranger School women’s test scores, injuries, evaluations and more.

He did so, he said, because of allegations that the standards were lowered to allow the women to graduate.

“The records request on the recent Ranger classes that included females is to investigate serious allegations that are being made by members of the military,” he wrote in Facebook post.

Read more here.  

Q&A: How to file a request in the Garden State

Q.   I would like to use the FOIA to request information from the New Jersey Division of Youth and Family Services (DYFS).  How do I initiate this request?

A.  In New Jersey, you may submit an "Open Public Records Act" through the following centralized web site: http://www.state.nj.us/opra/.  The agency you should select is the Dep't of Human Services, under which DYFS operates.    

Court opinion issued Sept. 22, 2015

Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Veterans Affairs (D.D.C.) -- deciding not to impose sanctions against the VA or its counsel after finding that their litigation tactics in FOIA case were not motivated by bad faith.  The court noted, however, that it remained "troubled by the cumulative effect of the decisions made along the way" by the government, namely the "multiplication of briefings and depositions", for which plaintiff was entitled to attorneys' fees, costs, and expenses. 

Summaries of all cases since April 2015 are available here.

FOIA News: FBI Said to Recover Personal E-Mails From Hillary Clinton Server

FBI Said to Recover Personal E-Mails From Hillary Clinton Server

By Del Quentin Wilber, Bloomberg, Sept. 22, 2015

The FBI has recovered personal and work-related e-mails from the private computer server used by Hillary Clinton during her time as secretary of state, according to a person familiar with the investigation.

The Federal Bureau of Investigation’s success at salvaging personal e-mails that Clinton said had been deleted raises the possibility that the Democratic presidential candidate’s correspondence eventually could become public. The disclosure of such e-mails would likely fan the controversy over Clinton’s use of a private e-mail system for official business.

The FBI is investigating how and why classified information ended up on Clinton’s server. The probe probably will take at least several more months, according to the person, who described the matter on condition of anonymity because the investigation is continuing and deals with sensitive information.

Read more here.

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.