Court opinions issued Dec. 22-23, 2015

Dec. 23, 2015

Baird v. Dep't of the Interior (E.D. La.) -- ruling that the government performed an adequate search in response to employee's request for records relating to his Civil Rights Act complaints and that disputed redactions were protected under the deliberative process privilege.  

Dec. 22, 2015

Abtew v. U.S. Dep't of Homeland Sec. (D.C. Cir.) -- affirming district court's decision that an asylum officer's recommendation to a supervisor was exempt under the deliberative process privilege; rejecting appellant's arguments that DHS had adopted the recommendation as a final decision or that DHS was estopped from invoking privilege given  prior disclosures of the same document in other cases.   

Summaries of all opinions issued since April 2015 available here.

Q&A: scope of FOIA and unsealing court records

Q.   Does the FOIA apply to only government documents? What if I am trying to get court records of a settlement unsealed -- what are the criteria for unsealing those records? Can I force a private entity to produce documents if those documents pertain to public safety? For example, if there has been testing by a private entity pertaining to water and soil safety of an area, must those records be produced under the FOIA if a request is made to that entity to produce those documents?

A.  The federal Freedom of Information Act applies to executive branch agencies, not courts, Congress, or private entities or individuals.  The scope of State public records laws vary, but most also do not apply to court records or to private entities.  You might be able to access sealed court records by making an informal request to the judge, as discussed in this article by the Reporters Committee for Freedom of the Press.  More extensive guidance on sealed court records is available from the Federal Judicial Center.  

FOIA News: Defense Secretary's emails targeted by FOIA request

Non-profit files FOIA for Carter emails

Carten Cordell, Federal Times, December 22, 2015

Defense Secretary Ash Carter admitted last week that he used a private email account to conduct official business, and now a government accountability nonprofit wants to see the emails.

Cause for Action, an organization focused on regulatory and fiscal transparency, has filed a Freedom of Information Act-request for all of Carter’s correspondence from the account, in addition to other messages.

The D.C.-based nonprofit claims that by using a private account, Carter may have violated provisions of the Federal Records Act, which governs the preservation of official government documents.

Amendments made to the FRA in 2014 forbid government workers to use private email addresses for official business unless the emails are copied to an authorized federal email account.

Read more here.

Court opinions issued Dec. 18, 2015

Snyder v. Dep't of Def. (N.D. Cal.) -- ruling that the Defense Logistics Agency had released certain responsive computer code information to plaintiff and therefore his claim for relief was moot; further ruling that DLA properly withheld other computer code information as critical infrastructure security information pursuant to Exemption 3 in conjunction with 10 U.S.C. §130e. 

Carlson v. U.S. Postal Serv. (N.D. Cal.) -- finding that spreadsheets indicating the number of transactions at given Postal Service locations in half-hour increments were properly withheld under Exemption 3, in conjunction with 39 U.S.C. § 410(c)(2), which exempts from disclosure Postal Service records that are of a commercial nature and would not be disclosed under good business practice.

Bartko v. U.S. Dep't of Justice (D.D.C.) -- determining that the FBI properly withheld all but six pages of requested records concerning plaintiff's conviction pursuant to Exemptions 3 (grand jury), 6, and 7(C); rejecting agency's relince upon Exemption 7(E) altogether.    

Bagwell v. U.S. Dep't of Justice (D.D.C.) -- denying government's motion for summary judgment in case involving records of DOJ's investigation of Pennsylvania State University sex abuse scandal.   The court held that the government's declarations and Vaughn Index were insufficient to assess whether the search was adequate or whether the withheld records were protected under Exemption 3 (grand jury).

Summaries of all opinions issued since April 2015 available here.

FOIA News: Defense Secretary Conducted Some Official Business on a Personal Email Account

Defense Secretary Conducted Some Official Business on a Personal Email Account

By Michael S. Schmidt, New York Times, Dec. 16, 2015

Defense Secretary Ashton B. Carter relied on a personal email account to conduct a portion of his government business during his first months at the Pentagon, according to White House and Defense Department officials and copies of Mr. Carter’s emails obtained by The New York Times.

Mr. Carter continued the practice, which violated Defense Department rules, for at least two months after it was publicly revealed in March that Hillary Clinton had exclusively used a personal email account as secretary of state, the officials said.

It is not clear when Mr. Carter stopped using the account. But an administration official said that when the White House chief of staff, Denis R. McDonough, learned about Mr. Carter’s email practices in May, Mr. McDonough directed the White House Counsel’s Office to contact the Defense Department to ask why Mr. Carter was relying on the personal account.

Mr. McDonough wanted to ensure that Mr. Carter was following all federal laws and regulations governing email use, the official said.

Read more here.

FOIA News: Clinton aide Phillipe Reines admits avoiding FOIA, reports Gawker

Clinton Aide Who Avoided FOIA Insists He Didn't Want to Avoid FOIA When He Wrote "I Want to Avoid FOIA"

J.K. Trotter, Gawker, Dec. 17, 2015

Former State Department official and longtime Hillary Clinton operative Philippe Reines has repeatedly stated that his email practices at State were aboveboard—even though he was caught lying about using a personal email address to conduct official government business. But new emails obtained by Gawker show that on at least one occasion, Reines discussed skirting the federal open-records law known as the Freedom of Information Act. According to the emails, he told two reporters,“I want to avoid FOIA.” Reines’ attorney dismisses the comment as a joke—but if it was, it was of the funny-because-it’s-true variety.

The relevant emails surfaced in the latest round of documents produced by the State Department in response to the lawsuit Gawker filed against the agency earlier this year. Page 412 and 413 of this month’s round reproduce a February 2009 exchange between Reines and the powerful political journalists John Heilemann and Mark Halperin, who at the time were gathering information for their book about the 2008 presidential campaign, Game Change. 

Read more here.

Court opinion issued Dec. 14, 2015

Long v. Immigration & Customs Enforcement (D.D.C.) -- holding that certain immigration information requested from government databases met the threshold requirements of Exemption 7(E), but finding that plaintiff raised genuine issues of fact as to whether disclosure would cause the harms identified by government.  The court further rejected the government's argument that the same information was exempt pursuant to the Federal Information Security Management Act ("Management Act"), 44 U.S.C. §§ 3541-49.  The court ruled in government's favor with respect to requested "snapshot" database information, because the agency established that fulfilling the request would be overly burdensome.  Lastly, the court determined that the agency performed an adequate search for responsive records.

Summaries of all opinions issued since April 2015 available here.

FOIA News: Justice Dept. Accused of Sabotaging FOIA

Justice Dept. Accused of Sabotaging FOIA

By Nicholas Iovino, Courthouse News Service, Dec. 15, 2015

The Department of Justice helped kill a bill intended to enhance transparency and refuses to release records on its efforts to block the legislation, the Freedom of the Press Foundation claims in court.

The nonprofit watchdog sued the Department of Justice in Federal Court Monday, seeking immediate disclose of its communications with members of Congress on bills that would force the DOJ to release more records to the public.

The foundation claims the DOJ has failed to abide by its own Freedom of Information Act guidelines, amended under the direction of President Barrack Obama and then-Attorney General Eric Holder.

Read more here.

FOIA News: State Department updates on FOIA staffing surge

State Department updates on FOIA staffing surge

By Josh Gerstein, Politico, Dec. 14, 2015

Reeling from an onslaught of Freedom of Information Act requests triggered by revelations about Hillary Clinton's email use, the State Department reported Monday that it has made modest progress in efforts to boost the number of staffers processing documents for review.

In a new court filing, State says that as of Dec. 1, it has made offers to 43 people to take part in a surge of 50 personnel Secretary of State John Kerry authorized in September to aid the agency's embattled FOIA operation. The slots are open to existing State staffers as well as some retired personnel and family members who have worked for the agency overseas.

However, as of December 11, only seven people have been added to the ranks of those reviewing material for release under FOIA, the filing says. Three other reviewers are handling Congressional document requests. Four more reviewers are expected to come on board this month, the Justice Department said in the court filing in a FOIA case brought by Vice News reporter Jason Leopold.

Read more here.

FOIA News: How will FAA handle FOIA requests for drone database?

FOIA fight looms over drone database

By Josh Gerstein, Politico, Dec. 15, 2015

A legal fight appears to be looming over public access to a new database the Obama Administration is setting up to register drone owners nationwide.

The Federal Aviation Administration announced Monday that it will begin registering small drones next week in an effort to try to capture some of the information on the small, unmanned, remote-controlled aircraft expected to be popular gifts this holiday season.

But what the FAA may find under its Christmas tree is a contentious legal battle over how much access the public, the news media, drone marketers and others should have to the planned database of drone enthusiasts.

Just last month, a task force made up largely of retailers and drone manufacturers recommended that the information in the drone registration database be off limits under the Freedom of Information Act and that officials "prevent the release of any personal information that the agency is not specifically required by law to disclose."

Rules released by the FAA in recent days indicate the agency is trying to make it impossible for the public to obtain a copy of the entire database of drone owners, while still providing access to some of the information.

"The public may only retrieve the name and address of owners of sUASs [small unmanned aircraft systems] registered under 14 CFR part 48 by the unique identifier displayed on the aircraft," the FAA said in a Privacy Act notice dated Friday. The statement says email addresses, telephone numbers and credit card information used to collect the $5 registration fee after a month-long free-registration period "will not be disclosed pursuant to [the] Routine Use" of public access to the database.

However, the documents don't say precisely what FAA plans to do if it receives a FOIA request for the whole database. Media lawyers and transparency advocates say that's because the agency has no authority to issue regulations that block access to information under FOIA.

"FOIA is an act of Congress and takes precedence over any agency interpretation. Even if FAA would like its advisory committee to override the principles of FOIA, it just can’t do it," Kurt Wimmer, general counsel for the Newspaper Association of America, told POLITICO.

Read more here.