Q. How do I get my FBI file?
A. To request records about yourself from the the FBI, follow the agency's instructions for making a "Privacy Act" request. If you wish to obtain certain criminal-related records, e.g., a "rap sheet," you must submit a request to the Criminal Justice Information Services Division.
Aqualliance v. U.S. Bureau of Reclamation (D.D.C.) -- finding that agency properly invoked Exemption 9 to withhold information regarding the construction, location, and depth of water wells; rejecting plaintiff's argument that the exemption applied to oil and gas wells only. The court further found that Exemption 6 did not justify the agency's redaction of the names and addresses of various participants in water transfer programs, participants in real water valuations, and well owners because plaintiff demonstrated that the public interest in disclosure outweighed the privacy interest at stake.
Sack v. Dep't of Justice (D.D.C.) -- ruling that the FBI properly withheld: (a) records relating to the selection process for FBI Polygraph Examiners under Exemption 2; (b) a recommendation concerning the feasibility of hiring non-agent polygraph examiners under Exemption 5 (deliberative process privilege); and (c) information about procedures and techniques used by FBI agents to conduct polygraph examinations pursuant to Exemption 7(E).
Summaries of all cases since April 2015 are available here.
The FOIA Advisory Committee will be holding its quarterly meeting at the National Archives and Records Administration (NARA) Building on October 20, 2015, from 10:00 a.m. to 1:00 p.m. EDT. To attend the meeting, you must register here by 5:00 p.m. EDT on October 19, 2015. The Committee will focus its discussion on FOIA oversight and accountability, proactive disclosure, and FOIA fees.
Why FOIA's speed clause is broken
By Erin Carroll, Columbia Journalism Review, Oct. 15, 2015
In August of 2013, the Associated Press made a straightforward records request to the State Department. It wanted Hillary Clinton’s calendars from her tenure as Secretary of State—and it wanted them quickly. Noting the likelihood of a Clinton presidential run, the AP sought to make use of a Freedom of Information Act provision that allows the press to jump to the front of the line when information is urgently needed.
The State Department’s response: there was nothing pressing the public needed to know. The agency agreed to process the request, but did not promise haste. More than two years later, with the presidential election underway and Clinton’s records from her time at the State Department at the center of the story, the agency still has not provided the calendars. It is under a court order to do so by November 5.
The State Department’s response to the AP is increasingly common. In 2014, agencies denied 87 percent of the 9,981 so-called “expedited processing” requests made under FOIA. This is up from a rejection rate of only 53 percent in 2008. And the rejection rate at certain agencies is far higher. The Securities and Exchange Commission granted only three of the 253 expedited processing requests it received last year.
This high rejection rate reflects wider dysfunction in the enforcement of FOIA, the legendary open government law that will mark its fiftieth anniversary next year. “Non-responsiveness is the norm,” Karen Kaiser, general counsel for the AP, told a US Senate panel in May. “The reflex of most agencies is to withhold information, not to release, and often there is no recourse for a requester other than pursuing costly litigation.”
Journalists are always complaining about FOIA. Yet, there is surprisingly little talk about the provision that can fast track media requests. Legally speaking, the expedited processing provision is special. It is one of the few laws that grant journalists a preference over ordinary citizens, in this case putting them at the front of an agency’s often-lengthy FOIA queue.
In recent years, however, the government’s definition of “urgent” has drifted far from the media’s. “The whole thing is a bit of a joke,” said Mark Horvit, executive director of Investigative Reporters and Editors. He explained how a FOIA request made two years ago by a student of his was just fulfilled—after the student’s graduation. “So what is expedited? One-and-a-half years?”
Federal officials say journalists may be expecting too much.
“The standards are strict,” says Melanie Ann Pustay, director of the Justice Department’s Office of Information Policy, which oversees FOIA compliance. She suspects that “more and more requesters are asking for expedited processing, but they’re not meeting the standard.”
Read more here.
State Department details hiring spree linked to Hillary Clinton email FOIA crush
By Josh Gerstein, POLITICO, Oct. 14, 2015
The State Department has offered positions to about half of the 50 personnel Secretary of State John Kerry has promised to hire for the swamped agency office that handles Freedom of Information Act request, but only three staffers have been formally transferred thus far, according to a new court filing.
The submission Tuesday night said the request for help last month drew 84 applications and resulted in 23 offers, all but one of which were accepted.
However, of the three employees who started recently, only one is actually reviewing FOIA requests. The other two were sent to work on Congressional document production "with the intent that they will free two more experienced reviewers to move to the...FOIA Litigation and Appeals Branch once the new hires are trained," State official John Hackett wrote in the declaration filed in U.S. District Court (and posted here.)
Read more here.
In response to a congressional request, the Inspector General of the U.S. Department of Agriculture (USDA) has issued a report that examines the USDA's FOIA operations as of October 2010. The report addresses whether any involvement of noncareer officials in FOIA process “resulted in any undue delay of a response, or the withholding of any document or portion of any document that would otherwise have been released but for a noncareer official’s involvement in the process.” Read the report here.
Dugan v. Dep't of Justice (D.D.C.) -- granting government's unopposed motion for summary judgment after finding that Bureau of Alcohol, Tobacco, Firearms, and Explosives properly withheld Firearms Trace Summaries and tax return information withheld under Exemption 3; attorney work product under Exemption 5; third-party identifying information under Exemptions 6 and 7(C)); specific law enforcement techniques, TECS codes and TECS file numbers under Exemption 7(E); and third-party information under Exemption 7(F) for personal safety reasons.
Summaries of all cases since April 2015 are available here.
Josh Gerstein, POLITICO, Oct. 8, 2015
Federal district court judges in Washington have unanimously rejected a bid by the Obama Administration to try to coordinate aspects of nearly 40 Freedom of Information Act lawsuits relating to the emails of former Secretary of State Hillary Clinton and her top aides.
The Justice Department, acting on behalf of the State Department and at the urging of at least two judges on the court, moved last month to put scheduling and record preservation issues in the cases in front of a single federal judge. At the moment, the cases are pending before 17 different judges, the government said in a recent filing.
In an order issued Thursday (and posted here), Chief Judge Richard Roberts that the judges on the court met privately to discuss the issue on Tuesday and decided against any formal process to align the cases.
“Many of the underlying cases have been pending for several years and a significant number of scheduling orders have already been entered,” Roberts said, referring to FOIA suits filed well before the recent disclosures about Clinton’s private email account and State’s decision to seek records from personal email accounts of her top aides. “The judges who have been randomly assigned to these cases have been and continue to be committed to informal coordination so as to avoid unnecessary inefficiencies and confusion, and the parties are also urged to meet and confer to assist in coordination.”
Most of the plaintiffs in the cases, who include conservative groups and media organizations, opposed the effort to coordinate the cases.
There was no immediate comment from the Justice Department or the State Department on the decision.
Read more here.
W.Va. AG leads 14-state coalition in filing FOIA request over Clean Power Plan publication delay
Jessica Karmasek, Legal Newsline, Oct. 7, 2015
West Virginia Attorney General Patrick Morrisey and 13 other state attorneys general want to know why publication of the much-maligned Clean Power Plan rule has been delayed.
Morrisey announced Wednesday that West Virginia along with Arizona, Arkansas, Colorado, Florida, Georgia, Kentucky, Louisiana, Nebraska, North Dakota, Oklahoma, South Carolina, Texas and Wisconsin have filed a Freedom of Information Act, or FOIA, request for communications between the federal Environmental Protection Agency and Office of the Federal Register regarding the rule’s publication.
“Publishing a rule typically occurs much faster than it has in this case,” Morrisey said in a statement accompanying the seven-page request.
“Our goal is to understand the cause behind the unusually long delay between the finalization and publication of the Clean Power Plan.”
EPA Administrator Gina McCarthy signed the rule as final Aug. 3, but it has yet to be published in the Federal Register.
States are not permitted to file a petition for review against the EPA under the Clean Air Act until the rule is published. As a result, states must wait until the publication process is complete before asking a court to stop the agency’s “unlawful” actions, Morrisey noted.
“We want to help the public understand why one of most widely criticized rules in our nation’s history is being subject to such unexplained delays,” he said. “This harms the states and undermines the availability of review by our courts.”
Read more here.
Court weighs whether Clinton email was official records system
By Sarah Westwood, The Washington Times, Oct. 6, 2015
A federal court is weighing whether Hillary Clinton's private server network should be treated as a State Department records system and therefore searched in its entirety by the agency.
Lawyers for Judicial Watch, a conservative watchdog group, pressed Judge Emmet Sullivan Tuesday to allow the court to question Patrick Kennedy, the State Department's top records official. They suggested Kennedy could certify whether the agency authorized Clinton's use of a private server.
Judicial Watch's legal team argued against "relying on former employees' apparently personal attorneys to decide" which emails should be considered official records in a Freedom of Information Act hearing Tuesday in district court.
State Department attorneys said the argument that Clinton's email domain should be treated as an official records system was "an incredibly novel legal theory" and discouraged the court from immediately allowing a review of the argument.
Read more here.