Court opinions issued Sept. 25, 2015

Bigwood v. U.S. Dep't of Def. (D.D.C.) -- adopting magistrate's findings that the Dep't of Defense: (1) conducted an adequate search for requested records concerning a coup d'état in Honduras; (2) properly withheld certain information pursuant to Exemptions 1 and 7(E); and (3) produced all reasonably segregable, non-exempt records.  The court further agreed with magistrate's recommendation to deny plaintiff's request for an in camera inspection of records, as well as his motion to file a sur-reply.     

Hall v. Fed. Bureau of Prisons (D.D.C.) -- determining that agency-defendants performed reasonable searches for records concerning plaintiff's criminal case and that Exemption 7(C) was properly invoked to withhold name of a grand jury foreman.   

Kleinert v. Bureau of Land Mgmt. (D.D.C.) -- deciding that neither party was entitled to summary judgment except with respect to limited amounts of information that the court ordered to be released or withheld.  The court otherwise concluded that the agency had not adequately described its search or justified its withholdings under Exemptions 5, 6, and 7(C). 

Whitmore v. U.S. Dep't of Justice (D.D.C.) -- finding that the Executive Office for United States Attorneys conducted an adequate search for records about plaintiff's criminal case and that it properly withheld the identities of special agents and the direct phone number of the prosecutor under Exemption 7(C).  

McKneely v. U.S. Dep't of Justice (D.D.C.) -- concluding that the Drug Enforcement Administration performed a reasonable search fir records concerning plaintiff's criminal case and that it properly withheld certain information under Exemptions 7(C), 7(D), 7(E), and 7(F).

Intellectual Property Watch v. U.S. Trade Rep. (S.D.N.Y) -- in case involving records of Trans-Pacific Partnership (a free trade agreement), the court granted in part and denied in part the parties' motions for summary judgment.  The court found that USTR properly invoked Exemption 1 to protect decision memoranda, draft agreement text, and certain communications between USTR and Industry Trade Advisory Committee (ITAC) that reflected U.S. positions and proposals that were shared with foreign counterparties.  With respect to other agency-ITAC communications, however, the court rejected USTR's reliance on deliberative process privilege and granted plaintiff's motion for summary judgment after concluding that ITAC was neither an agency nor a disinterested consultant.  Lastly, the court found that neither party was entitled to summary judgment with respect to agency-ITAC communications that were withheld pursuant to Exemption 3in conjunction with 19 U.S.C. § 2155(g) and/or Exemption 4.     

Summaries of all cases since April 2015 are available here.

FOIA News: Thousands more Hillary Clinton emails to be released

Thousands more Hillary Clinton emails to be released

By Josh Gerstein, Politico, Sept. 30, 2015

More than 6,000 pages of new Hillary Clinton emails are set to be published by the State Department Wednesday, the latest installment in a prolonged disclosure process that has proved to be painful for Clinton's presidential campaign by focusing attention on her decision to use a private email account and server to conduct her official business as secretary of state.

The newest set of emails are expected to be largely from late 2010 and early 2011, with State keeping to its prior practice of releasing emails from Clinton's account in rough chronological order. Among the topics expected to be covered in the new batch: the Arab Spring democracy movement, the build-up to NATO intervention in Libya and the disclosure of tens of thousands of classified diplomatic cables by WikiLeaks.

Read more here.

FOIA News: Dep't of Interior proposes amendments to FOIA regulations

The Department of the Interior has issued a proposed rule that would update the agency's FOIA regulations. Comments are due by November 30, 2015.

FOIA News: Generals Sought More Positive Coverage, Document Shows

Generals Sought More Positive Coverage, Document Shows

By Dave Phillips, New York Times, Sept. 29, 2015

Two top Army generals recently discussed trying to kill an article in The New York Times on concussions at West Point by withholding information so the Army could encourage competing news organizations to publish a more favorable story, according to an Army document.

The generals’ conversation involved a Freedom of Information Act request that The Times made in June for data on concussions resulting from mandatory boxing classes at the United States Military Academy. The Times also requested similar data from the Air Force Academy in June, and from the Naval Academy this month.

During a Sept. 16 meeting at the Pentagon, the Army surgeon general, Lt. Gen. Patricia D. Horoho, recommended to the superintendent at West Point, Lt. Gen. Robert L. Caslen Jr., that the Army delay responding to The Times’s request, according to the document. General Horoho then suggested trying to get The Wall Street Journal or USA Today to publish an article about a more favorable Army study on concussions.

Read more here.

FOIA News: International Right To Know Day

Today is "International Right to Know Day," which was established to raise awareness of the public's right to access government information.  This observance originated in Sofia, Bulgaria in 2002, when transparency advocates from around the world created a network of Freedom of Information Advocates (FOIA Network) and agreed to collaborate in promoting freedom of information initiatives.  In the United States, "Freedom of Information Day" is celebrated annually on or near March 16, which is James Madison's birthday.

FOIA News: OGIS issues report on U.S. Coast Guard's FOIA program

Today the Office of Government Information Services (OGIS) issued a compliance report concerning the United State Coast Guard's FOIA program.  OGIS’s three primary findings are:

1. The Coast Guard is not effectively managing challenges created by decentralization;
2. Technology is under-utilized; and
3. Communication needs improvement.

Read full report here.

FOIA News: Green groups sue Commerce Department over FOIA’d crude export permits, environmental reviews

Green groups sue Commerce Department over FOIA’d crude export permits, environmental reviews

By Joshua Cain, FuelFix, Sept. 24, 2015

In November 2014, the Center of Biological Diversity and ForestEthics, both nonprofits based in the San Francisco area, sent a Freedom of Information Act request to get copies of any oil export permits being handed out by the Commerce Department’s Bureau of Industry and Security.

The groups also requested documents related to environmental reviews of the permits they argue are required by the National Environmental Policy Act and the Endangered Species Act, which force federal agencies to determine the environmental impacts of any policies they enact.

The complaint that the groups filed on Thursday says that in response to their FOIA request, the BIS told them that the agency “has no responsive documents” on any environmental reviews. The agency also cited a rule in the original oil export ban that exempted permits issued by the BIS from open-records requests; the CBD and ForestEthics argue that that exemption expired in 2001.

Read more here.

FOIA News: Hillary Clinton vs. FOIA

Hillary Clinton vs. FOIA

By Kimberly A. Strassel, Wall Street Journal, Sept. 25, 2015

Of all the Clinton email revelations this week, none compared with a filing by the State Department in federal Judge Emmet Sullivan’s court in Washington on Monday. The filing was a response to a FOIA lawsuit brought in March by conservative organization Citizens United. The group demanded documents from Mrs. Clinton’s tenure as secretary of state related to the Clinton Foundation and to the 2012 terrorist attack on the U.S. diplomatic outpost in Benghazi, Libya. What the State Department revealed was a testament to the power of FOIA.

Congressional investigators can subpoena documents, but even if after long delays they get them, the investigators must trust that the agency handed over everything. The agency usually doesn’t. Under FOIA, by contrast, the agency is required by law to provide plaintiffs with a complete inventory and broad description of every document it has that pertains to the request—but is withholding. This is known as a Vaughn index. The State Department on Monday handed over its Vaughn index to Citizens United and, boy, are these email descriptions revealing.

We find that the State Department has—but is not releasing—an email chain between then-Clinton Chief of Staff Cheryl Mills and a Clinton Foundation board member about the secretary of state’s planned trip to Africa. We find that the State Department has—but is not releasing—emails between Ms. Mills and foundation staff discussing “invitations to foreign business executives to attend the annual meeting of the Clinton Global Initiative.” We find many undisclosed email chains in which State Department officials talk with Clinton Foundation officials about Bill Clinton speeches and Bill Clinton travel, including to events in North Korea and Congo.

Read more here.

Court opinion issued September 23, 2015

Rojas-Vega v. U.S. Citizenship & Immigration Serv. (D.D.C) -- upholding government's use of Exemptions 5, 6, 7(C), and 7(E) to withhold certain information pertaining to plaintiff's criminal conviction.

Summaries of all cases since April 2015 are available here.

FOIA News: White House Intervened In Dept. Of Energy FOIA Requests

White House Intervened In Dept. Of Energy FOIA Requests

By Kathryn Watson, Daily Caller, Sept. 24, 2015

White House officials intervened in public records requests made to the Department of Energy, but federal investigators don’t know how many because required records weren’t kept, according to a new report from the DoE’s Office of Inspector General.

Federal investigators found the DoE sent four of the 55 public records requests they analyzed to the White House for review, but the corresponding case files documenting actions taken on those requests were “incomplete,” the inspector general said.

“Without full retention of case documentation, particularly documents showing changes to redactions or exemptions used, it was impossible to know with certainty what changes were made when the documents went outside the department for review,” the inspector general said. “Further, the lack of case documents potentially makes it much more difficult to defend FOIA appeals.”

Read more here.