Court opinions issued Oct. 30, 2015

Dean v. U.S. Dep't of Justice (D.D.C.) -- determining that Drug Enforcement Administration performed an adequate search for a "cooperating individual agreement" that was used to prosecute plaintiff in 1991; noting that DEA was not required to "undertake 'fruitless' inquiries" to former employees of Department of Justice or Department of Homeland Security.    

Springer v. U.S. Attorney for the N. Dist. of Okla. (N.D. Okla.) -- granting government's summary judgment after finding that Executive Office for United States Attorneys had provided plaintiff with all non-exempt records and performed a reasonable search.

Electric Frontier Found. v. Dep't of Justice (D.D.C., 2015) -- ruling that an opinion of the Foreign Intelligence Surveillance Court was exempt from disclosure under Exemptions 1 and 3 because the opinion was properly classified and because its disclosure was prohibited by 50 U.S.C. §§ 3605, 3024(i)(1).  The court rejected the government's argument that plaintiff's action was barred by collateral estoppel; it further rejected plaintiff's argument that the government had waived its right to withhold the requested record.    

Summaries of all opinions issued since April 2015 available here.

Court opinions issued Oct. 27, 2015

Citizens for Ethics & Responsibility in Wash. v. U.S. Dep't of Justice (D.D.C.) -- awarding plaintiff $32,865.19 for attorneys' fee and costs in connection with its request concerning John Ensign, former Senator from Nevada. The court reduced plaintiff's request for $64,327.40 after determining that plaintiff relied upon an inappropriate matrix to calculate hourly attorney rates, that a portion of plaintiff's fee motion was unsuccessful, and that plaintiff failed to adhere to standards for contemporaneous timekeeping.  

Piccone v. U.S. Patent & Trademark Office (E.D. Va.) -- determining that USPTO performed a reasonable search for records concerning its investigation of plaintiff, an attorney who the prosecuted cases before the agency even though his law license had been suspended.  

Summaries of all opinions issued since April 2015 available here.

FOIA News: Watchdog Gets Attorney Fees From Justice

Watchdog Gets Attorney Fees From Justice

By Mike Heuer, Courthouse News Service, Oct. 30, 2015

The Department of Justice must pay $32,865 in attorney's fees for its delayed response to a FOIA request for documents on a closed criminal investigation of former Nevada Senator Jim Ensign's affair with a staffer, a federal judge ruled.

U.S. District Judge John Bates granted Citizens for Responsibility and Ethics in Washington's request for attorney's fees incurred during its lengthy but successful court fight for records of a closed investigation into Ensign and money he paid to his former chief of staff and wife, with whom Ensign had an affair.

CREW filed a Freedom of Information Act lawsuit in September 2012, claiming the DOJ's Criminal Division, the FBI and the Executive Office of U.S. Attorneys improperly withheld records of to the Ensign investigation that had concluded with no charges filed .

Read more here.

FOIA News: ICYMI, FOIA initiatives included in National Action Plan

This week, the United States released its third National Action Plan, which includes 45 commitments to advance transparency, accountability, participation and/or technological innovations.  Among these commitments are a number of FOIA initiatives, which are summarized below.

● Expand the Services Offered on FOIA.gov.  Additional new features will also be explored, including a guided request tool, online tracking of request status, simplified reporting methods for agencies, improved FOIA contact information, and tools that will enhance the public’s ability to locate already posted information.

● Improve Agency Proactive Disclosures by Posting FOIA-Released Records Online.  The Department of Justice will lead a pilot program with seven agencies to test the feasibility of posting FOIA-released records online so that they are available to the public. 

● Improve Agency FOIA Websites.  The Administration will issue guidance and create best practices for agency FOIA web pages, including developing a template for key elements to encourage all agencies to update their FOIA websites to be consistent, informative, and user-friendly.

● Increase Understanding of FOIA.  The National Archives will develop tools to teach students about FOIA. 

● Proactively Release Nonprofit Tax Filings.  The Internal Revenue Service will launch a new process that will remove personally identifiable information before releasing the public information within electronically filed nonprofit tax filings. 

Q&A: City-owned utility in Arkansas

Q.   Are meeting records of a city-owned utility in Arkansas subject to state's FOIA law?

A.   Yes.  See Opinion No. 2000-129 of the Arkansas Attorney General.  Please note, however, that only residents of the State of Arkansas may make FOIA requests to state and local agencies.   

FOIA News: Senators, Let Us Read Your Letters

Senators, Let Us Read Your Letters

By Alexis Coe, New York Times, Oct. 28, 2015

“DEAR Ms. Coe,” an archivist at Marquette University, Senator Joseph McCarthy’s alma mater, wrote in an email, “I regret to inform you that all post-1946 correspondence is sealed for the lifetime of McCarthy’s daughter.” The archivist pasted a link to the collection’s finding aid before concluding, “She has not responded to any inquiries on this matter.”

I was trying to gain access to the senator’s papers for a book project. I’ve worked in lots of government archives, and while the bureaucracy can be a hassle, I usually find what I need. Not this time: Short of suing Senator McCarthy’s daughter or Marquette, I have no real means of recourse.

That’s because the Freedom of Information Act does not apply to the legislative branch. When Congress enacted the F.O.I.A. in 1966, it was after the executive branch’s records, and tailored the law to fit its needs. (Not that the executive branch has done a great job: According to the Center for Effective Government’s 2014 F.O.I.A. Access to Information Scorecard, only eight out of 15 government agencies earned “passing grades.”)

Read more here.

FOIA News: Leahy fails to strike FOIA exemption from cybersecurity bill

An amendment offered by Senator Leahy that would have removed a FOIA exemption in the Cybersecurity Information Sharing Act of 2015 was rejected by a 59 to 37 vote today. 

Court opinion issued Oct. 23, 2015

Hajro v. U.S. Citizenship & Immigration Servs. (9th Cir.) -- reversing district court's ruling that the U.S. Citizenship and Immigration Services has a "pattern and practice" of violating FOIA response deadlines.

 Summaries of all opinions issued since April 2015 available here.

FOIA News: Free FOIA workshop on November 4, 2015

The director of the National Security Archive's "Freedom of Information Project," Nate Jones, will lead a two-hour workshop on November 4, 2015, on how to file FOIA requests to the federal government.  The workshop is free of charge and will take place at 6:00 pm at George Washington University's Gelman Library, 2130 H Street NW,  Washington, DC, Room: 702.  For more information, please contact GW's Gelman Library at gelman@gwu.edu.

Court opinion issued Oct. 21, 2015

Our Children's Earth Found. v. Nat'l Marine Fisheries Serv. (N.D. Cal.) -- ruling that: (1) the agency conducted an adequate search and that it was not required to submit declarations from each employee who participated in the search; (2) a low-level employee's "draft chart and summary" sent to senior employee was withheld appropriately pursuant to the deliberative process privilege; (3) the agency established that it had released non-exempt, reasonably segregable factual information from certain records, but that an 11-page document could not be withheld in full under the attorney-client privilege merely because the document had been sent to an agency attorney for review; (4) the agency appropriately used search cut-off dates based upon when its principal subject matter expert initiated searches, but noting that "a better policy is the search start date of each individual [subject matter expert]"; and (5) plaintiff was entitled to declaratory relief (and limited injunctive relief) as a result of agency's pattern and practice of failing to meet FOIA deadlines.

Summaries of all opinions issued since April 2015 available here.