FOIA News: Supreme Court declines Exemption 4 case; Thomas and Scalia dissent

The Supreme Court decided today not to accept New Hampshire Right to Life v. Department of Health and Human Services, a case in which the Court of Appeals for the First Circuit found that Planned Parenthood's "Manual of Medical Standards and Guidelines" was protected from disclosure under Exemption 4.  Justice Thomas issued a dissent joined by Justice Scalia, stating that the First Circuit's decision warranted review because it "perpetuates an unsupported interpretation of an important federal statute and further muddies an already amorphous test."  

FOIA News: Feds want rehearing on mugshots

DOJ Asks 6th Circ. To Decide If FOIA Covers Mugshots

By Jacob Fischler, Law360, Nov. 12, 2015

The U.S. Department of Justice asked the full Sixth Circuit on Thursday to rehear a panel’s decision that the U.S. Marshals Service must provide booking photos under Freedom of Information Act requests, saying a circuit split requires full rehearing.

In a reply brief answering the Detroit Free Press’ opposition to its original petition for en banc rehearing on the case over whether booking photos are exempt from FOIA requests, the DOJ said the newspaper — while acknowledging the differences between precedent in the Sixth Circuit and...

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Court opinions issued Nov. 10, 2015

Allison v. U.S. Marshals Serv. (D. Idaho) -- ruling in government's favor after finding that:  (1) requested police records were not in agency's possession and that a sealed court record was not improperly withheld; and (2) plaintiff failed to administratively appeal agency's search methodology or its exemption claims with respect to remaining requested records.

Pinson v. U.S. Dep't of Justice (D.D.C.) -- granting in part and denying in part summary judgment motion of the Executive Office for the United States Attorneys.  The court found that plaintiff had failed to appeal certain agency responses, but held that plaintiff was not required to appeal responses that the agency had made after plaintiff filed his initial Complaint.  The court further held that EOUSA's declaration failed to demonstrate that the agency's search was adequate, noting the declaration's description of the search was "so general that it could describe virtually any search undertaken in response to a FOIA request."

 Summaries of all opinions issued since April 2015 available here.

Court opinion issued Nov. 6, 2015

Elec. Frontier Found. v. U.S. Dep't of Commerce (9th Cir.) -- vacating and remanding district court's decision that export licensing records were not protected by the Export Administration Act of 1979, which had expired in 2001, in light of the enactment of a law after the district court's decision that appeared to retroactively revive the Act.  

 Summaries of all opinions issued since April 2015 available here.

Q&A: The Financial Industry Regulatory Authority

Q.  Can a person registered with FINRA (i.e., a registered representative) successfully submit a FOIA request to FINRA to get his former employer's correspondence with FINRA concerning his alleged wrongdoing committed while he was an employer of such employer?

A.  FINRA is a non-profit organization, not a government agency, and therefore it is not subject to FOIA.  FINRA might have its own disclosure policies/procedures, but I am not aware of them.     

Q&A: does the government have a file on former Vietnam protester?

Q.   I was in anti-Vietnam War marches in 1968 thru 1971 that turned violent.  I want to know what information the government has on me concerning political violence.  Where should I send a request?

A.   You might consider submitting a Privacy Act request to the FBI.  Here are the relevant instructions from the FBI's web site:

If you are requesting information about yourself, you must use one of the following options:

Option 1: Use the U.S. Department of Justice Certification of Identity Form DOJ-361.  You may submit an attachment listing additional information that may aid in locating responsive records. Please place your name and contact information on the attachment.

Option 2: Following the instructions in U.S. Department of Justice Certification of Identity Form DOJ-361, submit a letter to the FBI, sign your request, and have it notarized or state, “Under penalty of perjury, I hereby declare that I am the person named above and I understand that any falsification of this statement is punishable under the provisions of Title 18, United States Code (U.S.C.), Section 1001 by a fine of not more than $10,000 or by imprisonment of not more than five years, or both; and that requesting or obtaining any record(s) under false pretenses is punishable under the provisions of Title 5, U. S. C., Section 552a(i)(3) as a misdemeanor and by a fine of not more than $5,000.” If you have any questions about this process before submitting your FOIPA request, please e-mail foipaquestions@ic.fbi.gov. 

Mail, fax, or e-mail this letter to the following:

Federal Bureau of Investigation
Attn: FOI/PA Request
Record/Information Dissemination Section
170 Marcel Drive
Winchester, VA 22602-4843
Fax: (540) 868-4391/4997
E-mail (scanned copy): foiparequest@ic.fbi.gov

Q&A: administrative records from Superior Court in California

Q. How can I obtain records concerning a California Superior Court's internal investigation of its employees?

A.  The California Public Records Act does not apply to the judicial branch.  As of 2010, however, rule 10.500 of the California Rules of Court established comprehensive public access provisions for  judicial administrative records maintained by state trial and appellate courts, and the Judicial Council of California.

Court opinions issued Nov. 4, 2015

Gawker Media, LLC v. FBI (M.D. Fla.) -- granting in part and denying in part the government's motion for summary judgment concerning plaintiff's request for records concerning investigation of extortion involving "Hulk Hogan" sex tape.  The court granted government's Exemption 6 claims with respect to Hulk Hogan's family members, but denied those claims for individuals who had voluntarily publicized their involvement, the names of private attorneys, and certain government employees.  The court further found that the government had properly invoked Exemptions 3, 5, and 7(E).  However, the court reserved ruling on certain exemption claims made by the Executive Office of United States Attorneys pending an in camera review of records.    

Gahagan v. U.S. Citizenship & Immigration Servs. (E.D. La.) -- denying the parties' motions for summary judgment and ordering the government to submit a revised Vaughn Index that "more clearly identifies each redaction within the documents and clearly explains the relevance of each applied exemption, in particular exemption (k)(2)" of the Privacy Act. 

Gahagan v. U.S. Citizenship & Immigration Servs. (E.D. La.) -- ruling that plaintiff was ineligible for attorneys' fees and costs because plaintiff presented no evidence to show that the ultimate disclosure of the requested documents -- two months after the FOIA request -- resulted from the filing of his lawsuit, rather than merely administrative problems.

Summaries of all opinions issued since April 2015 available here.

Court opinion issued Nov. 3, 2015

Bothwell v. Brennan (N.D. Cal.) -- concluding that the Central Intelligence Agency conducted an adequate search of its operational files for records generated in 1976 concerning Johnny Roselli.  In reaching its decision, the court rejected plaintiff's argument that the CIA should have searched and reviewed the actual, hard-copy paper files after the agency found no responsive records through inquiries of its electronic databases.

Summaries of all opinions issued since April 2015 available here.

FOIA News: Technical difficulties blamed for delayed release of Clinton's schedules in AP FOIA lawsuit

State Dept.: Outlook crashes delay release of Hillary Clinton schedules

By Josh Gerstein, Politico, Nov. 4, 2015

Repeated crashes of a version of the Microsoft Outlook program in recent months stymied the State Department's ability to respond to a Freedom of Information Act lawsuit demanding former Secretary of State Hillary Clinton's schedules, according to a new court filing.

A written declaration a senior State official submitted Wednesday in connection with a FOIA suit filed by the Associated Press said the agency is unable to meet a deadline Thursday to produce all records of Clinton's schedules during her four years as secretary of state.

State Deputy Executive Secretary Kelly Degnan said the Outlook crashes hampered State's ability to search email accounts and delayed the agency from searching archived versions of official emails accounts maintained by several Clinton aides involved with setting her schedule.

Read more here.