FOIA News: FBI under fire for requiring photo ID

Critics slam FBI’s new app that demands ID before sharing public data

RT, Dec. 5, 2015

The FBI’s new data-requesting eFOIA app comes with controversial terms: The agency wants your ID in exchange for the information. Critics argue that the FBI collecting the requesters’ sensitive information is “over the top” and likely illegal.

The Bureau presented its new application, eFOIA, earlier this week. According to an official press release, it is for “a new generation that’s not paper-based” who want to “obtain the FBI records a little quicker.” Previously, the FBI was accepting such requests only through regular mail, fax or e-mail.

However, the app comes with a new – and quite controversial – requirement: the FBI wants a photo of a requester’s government-issued ID first. Without it, the agency will not process a request and, thus, decline to share the information it must share under the Freedom of Information Act (FOIA).

For its part, the Bureau said it needs the photo “so the FBI is confident in the identity of the requester.” However, no such ID is required when processing FOIA requests through other means.

This is where critics argue the FBI actually makes the process harder, not easier – and probably not safer, either.

“The FBI does not explain how people’s ID cards will be stored, used, or shared, except under its rather broad existing site-wide privacy policy,”investigative researcher Dave Maass wrote at The Electronic Frontier Foundation (EFF). He said this requirement should be “treated as a bug and excised from the new system.”

Read more here.

Court opinion issued Dec. 2, 2015

Gahagan v. U.S. Citizenship & Immigration Servs. (E.D. La.) -- granting in part and denying in part agency's motion for summary judgment concerning request for an immigration file and related correspondence from agency field office. First, the court held that the agency's declarant was not required to have personally participated in the search for responsive records in order to have requisite personal knowledge of the search.  Second, the court held that the agency conducted an adequate search and that it was not required to explain why it did not search search in certain locations.  Third, the court found that USCIS had not discharged its FOIA obligations because four pages that it referred to the U.S. Department of State had not yet been processed.  Lastly, the court ordered USCIS to submit a new Vaughn Index to address various deficiencies, including withholdings under Exemption 5 and segregability.          

Summaries of all opinions issued since April 2015 available here.

Court opinion issued Nov. 30, 2015

Boyd v. Exec. Office for U.S. Attorneys (D.D.C.) -- determining that the agency:  (1) properly withheld records of interviews of third parties pursuant to Exemption 6 and 7(C); (2) properly withheld a "Conflict of Interest Certification" form under Exemption 3, in conjunction with 5 U.S.C. app. 4 § 107(a)(2); (3) properly withheld the first page of a letter concerning grand jury's investigation under Rule 6 (e) of Federal Rules of Criminal Procedure, but that agency improperly relied on same privilege to withhold remaining pages; (4) properly withheld the remaining pages of aforementioned letter under Exemptions 5 and 7(C), except for one sentence that court deemed non-exempt.    

Summaries of all opinions issued since April 2015 available here.

Court opinion issued Nov. 25, 2015

Virginia-Pilot Media Cos. v. Dep't of Justice (E.D. Va.) -- finding that the FBI conducted an adequate search for responsive records and properly invoked Exemptions 5, 7(E), and 7(F), but declaring that plaintiff was prevailing party for purposes of attorney's fees because lawsuit was necessary to prompt agency's response.   

Summaries of all opinions issued since April 2015 available here.

Q&A: Is this request reasonably described?

Q.  How specific does a request have to be?  We received a request asking for all documents containing information regarding our "electronic message center."

A.   A federal FOIA request must reasonably describe the records sought, which means that agency staff has the ability to reasonably ascertain exactly which records are being requested and to locate them.   Several courts have held that requests for "all documents" that "pertain to" or "relate to" a broad subject are not reasonably described.  For additional guidance on this subject,  see DOJ Guide to the Freedom of Information Act, Proper FOIA Requests.  

FOIA News: Highlights of Hillary Clinton's email

The Daily 202: Takeaways from the latest Hillary Clinton e-mail dump

James Hohmann, Washington Post, Dec. 1, 2015

THE BIG IDEA:

The State Department posted 7,800 pages of Hillary Clinton’s e-mails yesterday afternoon, the latest batch of the 55,000 pages that she sent and received while in office.

In this installment, 328 of the e-mails were withheld from public consumption because they are now deemed classified — the State Department says that brings the total number of messages partially withheld on that basis to 999. “All the messages designated as classified Monday were at the lowest tier, ‘Confidential,’ which is usually used for sensitive diplomatic communications,” Politico’s Josh Gerstein notes.

A few of the most interesting nuggets:

— Superstorm Sandy apparently knocked out the Clinton private server for two weeks in 2012, delaying her responses to several messages, including birthday greetings. Karen Tumulty recalls that it was this episode that led the Clintons to seek more IT help.

— One 2012 exchange underscores the belief within Clinton’s high command that Hillary had erred in 2008 by not showing enough emotion on the campaign trail. Rosalind S. Helderman zeroes in on a note that Mark Penn, who was Clinton’s 2008 chief strategist, sent after the Secretary of State testified before the Senate about the Benghazi attacks and famously asked: “… what difference, at this point, does it make?”

While Hillary’s closest aides at Foggy Bottom were celebrating the hearing – they thought the boss crushed it – Penn warned that she had hurt herself. “I don’t think the emotion in the hearing works to your advantage,” he wrote. “Looks more like they rattled you on something no one outside the crazy right blamed you for anyway.” Penn had prodded Clinton to come across as Thatchersque in her 2008 battle with Barack Obama.

Read more here. 

FOIA News: Bake sale to fund FOIA request

Capitol Hill Residents to Hold Bake Sale to Raise Money for FOIA Request

By Jackie Bensen, NBC Washington, Nov. 30, 2015

Some Capitol Hill residents want to know whether a "revolving door" of justice is playing a part in their neighborhood's crime problem -- but actually getting the answer will come with a daunting price tag.

So they've come up with an unusual way to get that information: a bake sale. 

For months, Advisory Neighborhood Commissioner Denise Krepp, who serves the Hill East area, has been trying to find out how many of the thousands of arrests made by police have actually resulted in prosecution.

"I want to know why we have criminals on the street when they should be locked up," she said, wondering if her neighborhood's rising crime rate is because too many criminals are being let back out on the streets.

Last month, hundreds of residents gathered for an anti-crime meeting, after the Hill area was rocked by a series of street robberies, a home invasion rape, and a fatal shooting, all in a two-week period. After officials were unable to answer questions about the prosecution rate, Krepp filed a Freedom of Information Act (FOIA) request with the Department of Justice.

The department responded to say that providing the information would be costly: $40 an hour, for what could be hundreds of hours of research.

"You know what happened when I told my residents that I was going to pay $1,000 [of my own money]?" Krepp asked. "They said, 'No, you're not. We're going to help you.' So we started thinking of ways to raise the money. We're going to do bake sales."

The date of the bake sale has not yet been determined, but will take place at Eastern Market.

Krepp said the fact that authorities didn't have the information in the first place is deeply concerning.

"But if you have no idea how many cases you've prosecuted, then you have no idea what the crime level is in Washington, D.C.," she said. "And if you don't, who does?"

FOIA News: State Dep't will release additional Clinton emails today

State Dept. set to release 7,800 new Clinton emails

By Sarah Westwood, Washington Examiner, Nov. 30, 2015

State Department officials are set to release roughly 7,800 pages of Hillary Clinton's private emails Monday amid new speculation about the former secretary of state's official meeting schedule.

The email production Monday afternoon will kick off a countdown to the final two Clinton email releases, which will take place at the end of December and January respectively.

Hundreds of the official emails Clinton hosted on a private server in her home have been published in batches since May of this year.

The State Department released more than 7,000 pages of emails last month, surpassing its goal of having 51 percent of the records posted online by that time.

Read more here.  

Court opinions issued Nov. 23-24, 2015

Nov. 24, 2015

Aguiar v. Drug Enforcement Admin. (D.D.C.) -- concluding that GPS mapping software used by the DEA at plaintiff's criminal trial is not an agency record; further ruling that plaintiff's inability to access DEA-released information on a compact disk due to prison security rules could not be remedied via FOIA.  

Tipograph v. Dep't of Justice (D.D.C.) -- determining that plaintiff lacked standing to pursue her claim that the FBI maintains a policy of improperly invoking FOIA Exemption 7(A) at the investigative-file level rather than at the record level.  The court rejected the FBI's alternative argument that plaintiff's claim was moot.  

Nov. 23, 2015

Havemann v. Colvin (4th Cir.) -- affirming district court's decision that the Social Security Administration performed an adequate search in response to a large-scale request concerning allegedly underpaid beneficiaries, and that the requested data was either released or properly withheld under Exemption 6.  The Fourth Circuit rejected appellant's contentions that the public interest outweighed any privacy interests or that the district court "improperly considered affidavits from a previous case, erroneously relied upon interested 'experts,' and considered affidavits that were merely speculative."

Summaries of all opinions issued since April 2015 available here.

Q&A: Chicago Police Department exam

Q.  Can I file a FOIA request to obtain copies of the tests and the answers from the Chicago Police Department Lieutenants Exam?  The test was administered and results posted.

A.  Those documents are likely exempt from disclosure under section 7(1)(q) of the Illinois Freedom of Information Act, which protects "[t]est questions, scoring keys, and other examination data used to determine the qualifications of an applicant for a license or employment."  Should you nonetheless wish to submit a request, here is the FOIA contact information for the Chicago Police Department.