FOIA News: House investigating State Dep't FOIA program

Eyeing Clinton’s tenure, Chaffetz probes State’s FOIA program

By Elise Vieback, Wash. Post, Jan. 20, 2016

Does the State Department obstruct valid requests for public records?

That’s what House Oversight Committee Chairman Jason Chaffetz (R-Utah) is trying to find out with a new probe of the department’s Freedom of Information Act (FOIA) program under Secretary John Kerry, former Secretary Hillary Clinton and three of their predecessors.

Citing an increase in FOIA-related litigation, Chaffetz asked the State Department to produce information about how the Office of the Secretary handles records requests. The office was criticized for a lack of compliance with FOIA rules in a Jan. 7 inspector general’s report.

“The Department’s repeated failure to comply with the FOIA statute … demonstrates either incompetence or purposeful obstruction of the requesters’ right to access agency records, or both,” Chaffetz wrote Tuesday in a letter to Kerry.

The investigation adds to the pressure facing Clinton from Republicans on Capitol Hill, where multiple investigations into her tenure at the State Department, including the 2012 attacks in Benghazi, Libya, are in progress.

In his Jan. 7 report, State Department Inspector General Steve Linick concluded that “procedural weaknesses coupled with a lack of oversight by leadership” led to “inaccurate and incomplete” FOIA responses at the Office of the Secretary.

Conflicts between the State Department and outside groups, including media outlets, over FOIA requests increased last year after revelations that Clinton conducted official business using a private email server during her tenure at State.

The department did not immediately respond to a request for comment.

Q&A: stopped at Customs

Q.   My wife and I travel as missionaries to other countries and in Nov. 2014 we were coming back into the country from Africa and were held by the Customs at Atlanta.  I do not have anything wrong on my record and I do not want to be held up this year as we travel again.

A.  See the following information from the U.S. Customs and Border Protection about requesting records concerning yourself with respect to screenings at airports and other transportation hubs.

FOIA News: DOJ seeking federal nominees for FOIA awards

SAVE THE DATE AND NOMINATE CANDIDATES FOR DOJ'S 2016 SUNSHINE WEEK AWARDS

Office of Information Policy, Press Release, Jan. 14, 2016

The Department of Justice is proud to announce that we will once again commemorate the start of Sunshine Week with a kickoff event on Monday morning, March 14, 2016. To help us prepare for this event, OIP is seeking nominations for this year’s Sunshine Week FOIA Awards.

Embracing DOJ's declaration that "FOIA is everyone's responsibility," during Sunshine Week 2015 the Department recognized and celebrated the contributions of FOIA professionals with the first Sunshine Week FOIA Awards. At last year's event, the accomplishments of various FOIA professionals were highlighted through awards such as Excellence in Management and Outstanding Contributions by a New Employee. As we prepare for Sunshine Week 2016, and in recognition of the FOIA’s 50th Anniversary, OIP is seeking nominations for two categories of awards for our 2016 Sunshine Week event.

Details on how to submit your nominations for this year’s awards are listed below. Nominations are due to OIP by Friday, February 19th. Awardees will be recognized during the Department’s 2016 Sunshine Week Kickoff Event to be held on Monday, March 14th at 10:00 am. Full details for this event will be announced here on FOIA Post in the coming weeks.

The Department's 2009 FOIA Guidelines emphasize the key role of agency FOIA professionals as these individuals are “responsible for the day-to-day implementation of the Act.” The FOIA was signed into law by President Johnson in 1966 and over the last 50 years it has, as President Obama declared, remained “the most prominent expression of a profound national commitment to ensuring an open Government.”

The 2016 Sunshine Week Awards are designed to recognize both the vital work of FOIA professionals as well as to celebrate the 50th anniversary of this important law. We look forward to receiving your nominations and seeing you at the event.

Read more here.

Court opinions issued Jan.12, 2016

Jan. 12, 2016

Bethea v. U.S. Dep't of Agric. (D.S.C.) (magistrate) -- recommending summary judgment in government's favor after finding that USDA had conducted a reasonable search and released in full all records that it located in response to pro se prisoner's request. 

Pebble Ltd. v. U.S. Envtl. Prot. Agency (D. Alaska) -- holding that the EPA properly invoked Exemption 5 to withhold draft assessments and internal emails relating to plaintiff's plans to extract minerals from the Pebble Mine deposit in Southwest Alaska.

Summaries of all opinions issued since April 2015 available here. 

Court opinion issued Jan. 8, 2015

Schwartz v. Drug Enforcement Admin. (E.D.N.Y) -- ordering the release of a video taken by a government surveillance plane depicting a drug interdiction operation in Honduras, rejecting the agency's reliance upon Exemption 7(E) except with respect to one redaction.

Jett v. Fed. Bureau of Investigation (D.D.C.) -- denying government's motion for reconsideration of court's decision that FBI's search had been inadequate.  Specifically, the court held that FBI could not categorically refuse to search for third-party records involving public corruption in a congressional election in light of D.C. Circuit precedent.  Further, the court found that FBI failed to offer any new evidence as to why it did not search its electronic surveillance files for telephone records. 

Summaries of all opinions issued since April 2015 available here.

Sunlight Foundation on the FOIA Bill

4 things to know about the new FOIA reform bill

By Drew Doggett, Sunlight Foundation, Jan. 12, 2016

Nearing its 50th anniversary, the Freedom of Information Act (FOIA) saw its biggest overhaul since 2007 yesterday when the House passed The FOIA Act. The day before the vote, the Committee on Oversight and Government Reform released a 39-page report calling the current system “hobbled and broken.” This bill passed by the House yesterday aims to amend the FOIA to strengthen government information sharing.

It has bipartisan support

While expanding the public’s access to government records has come close to the the Oval Office before, it now has more bipartisan support than ever — so much that it was fast-tracked for a voice vote in the House.

Sponsored by Reps. Darrell Issa, R-Calif., and Elijah Cummings, D-Md., the updated FOIA legislation makes it easier for the public to obtain government records. The bill contains over 54 co-sponsors in the House with a near 50/50 split of Republicans and Democrats.

It promotes transparency and accountability

Read more here.

FOIA News: ‘FOIA Is Broken,’ Says House Panel Report

‘FOIA Is Broken,’ Says House Panel Report

By Jacob Gershman, Wall Street Journal, Jan. 12, 2016

In some ways it’s never been easier for citizens to seek federal agency records through the Freedom of Information Act, the public’s main tool to get information from the government.

Public records portals like Muckrock.com and FOIA Machine have helped automate and simplify the FOIA process, making it easier for people to craft records requests and share disclosed documents with other online users.

According to a new report by the Republican-led House Oversight and Government Reform Committee, the FOIA system has gotten more dysfunctional and opaque,

Read more here.

FOIA News: House approves FOIA amendments

House passes sweeping FOIA reform legislation

By Megan R. Wilson and Cristina Marcos, The Hill, Jan. 11, 2016

The House on Monday passed legislation that would create the most sweeping reforms to federal open records laws in nearly a decade. 

Approved by voice vote, the measure would limit exemptions under the Freedom of Information Act (FOIA) that now allow federal agencies to hold back information.

The bill would also create a single online portal for people to make FOIA requests and require agencies to publicly post frequently requested records online.

The legislation has been years in the making, following persistent complaints about the FOIA process from journalists, the public and members of Congress.

“We regularly use the Freedom of Information Act and regularly find ourselves frustrated,” said Rep. Darrell Issa (R-Calif.), the bill’s author and a former chairman of the House Oversight Committee. 

Outside advocates, in addition to House and Senate lawmakers, are pushing to ensure the legislation finally crosses the finish line.

The last attempt to reform the FOIA process stalled, in 2014. 

That bill had faced opposition in the Senate, with companies and government agencies raising concerns about what kinds of information could be released, but the legislation ended up unanimously passing the upper chamber in December.

But the legislation never came up for a vote in the House.

The new bill, the FOIA Oversight and Implementation Act, H.R. 653, represents the most significant push to overhaul the FOIA system since 2007.

Among other things, it would reform how agencies can redact some information using Exemption 5, which is often derisively referred to as the “withhold because you can” statute. In practice, it is supposed to apply to “interagency or intra-agency communication,” such as draft documents.

The legislation, however, requires agencies to disclose any “records that embody the working law, effective policy, or the final decision of the agency.” It also mirrors the Senate legislation in requiring that Exemption 5 cannot be used on any information older than 25 years.

The measure would codify nonbinding directions from the Obama administration and the Justice Department on how to fulfill document requests with a “presumption of openness,” in addition to improving public digital access to records released through FOIA and making oversight of the process more independent.

Rep. Elijah Cummings (Md.), an original co-sponsor of the House bill and the top Democrat on the Oversight and Government Reform Committee, lauded the passage of the bill on Monday.

“This bipartisan legislation finally puts into law the presumption of openness that should be the hallmark of the Freedom of Information Act, regardless of who occupies the White House,” Cummings said in a statement. “I urge the Senate to take up this bill without delay and to send it to the President for his signature.”

Senate Majority Leader Mitch McConnell (R-Ky.) on Monday would not say whether the Senate’s version of the legislation would be placed on the calendar.

“He hasn’t announced anything on that yet,” a spokesman for McConnell said in an email.

A few hours before the House vote, Sen. John Cornyn (R-Texas) — McConnell’s second-in-command, as majority whip — spoke on the Senate floor and pushed for the upper chamber to take action on FOIA reform.

Read more here.  

FOIA News: Congress to consider FOIA reforms tomorrow

House to Weigh Overhaul of Open Records Process

Gardiner Harris, New York Times, Jan. 11, 2016

Fifty years after Congress passed a law opening most government records to public scrutiny, the House is expected Tuesday to take up the most important open records overhaul since 2007. Majorities of both Republicans and Democrats are expected to support the legislation.

Republicans in the House, frustrated by what they call the State Department’s incomplete and slow response to inquiries about Hillary Clinton’s use of a private email server while she was secretary of state, have complained that the open records process “is broken” and that the Obama administration has ignored the law. Democrats, while defending the administration, agree that the records law needs strengthening.

The bill already has 54 co-sponsors, including 25 Democrats, making it one of the few pieces of truly bipartisan legislation expected to pass this Congress.

For thousands of journalists, historians and executives who file requests every year for government records only to see their requests ignored, delayed for years or refused altogether, the changes cannot come soon enough.

“The first thing that happened was that they lost my request,” said Victor Schonfeld, a London journalist who filed an information request with the State Department in 2013 for records from the department’s embassy in Berlin.

Mr. Schonfeld said that a month after receiving an email acknowledging that the department had received his request, he called to check on its status only to learn that it had been lost. He filed again. A year later, he received a document that was almost entirely blacked out.

“It was really frustrating,” Mr. Schonfeld said.

Read more here.  

Court opinions issued Jan. 5 & 7, 2016

Jan. 7, 2016

Estate of Abduljaami v. U.S. Dep't of State (S.D.N.Y.) -- determining that agency conducted a reasonable search for records concerning death of an individual in Cologne, Germany, and that disputed information was properly protected under Exemption 6.  

Polk v. Fed. Bureau of Investigation (N.D. Cal.) -- holding that FBI conducted a reasonable search in response to pro se prisoner's request for records concerning a file number that plaintiff mistakenly believed was evidence of an FBI investigation concerning her.  

Jan. 5, 2016

Navigators Ins. Co. v. Dep't of Justice (D. Conn.) -- ruling that plaintiff was not entitled to declaratory relief merely because the Executive Office for U.S. Attorneys had failed to timely process plaintiff's requests, even though the agency delays were "egregious."  The court further rejected plaintiff's argument that "public interest"  was sufficient to overcome Exemption 7(C)  or any other asserted exemptions.  The court,  however, declined to grant summary judgment for the government because  its "meager" declaration failed to demonstrate that it had conducted an adequate search.  

Summaries of all opinions issued since April 2015 available here.