Court opinion issued Jan. 22, 2016

Shapiro v. U.S. Dep't of Justice (D.D.C.) -- denying the parties' summary judgment motions in case involving various documents that the FBI creates while processing FOIA requests, namely search slips, processing notes, and case evaluation forms.  Notably, the court rejected the FBI's policy of using Exemption 7(E) to withhold search slips and processing notes generated in response to FOIA requests submitted in the past 25 years for information contained in investigative files.  The court further held that the FBI could not categorically withhold case evaluation forms under Exemption 2, but that it could redact the names of individual analysts under Exemption 6.

Summaries of all opinions issued since April 2015 available here.

FOIA News: "The Atlantic" explores "Slack" messages and FOIA

Are Slack Messages Subject to FOIA Requests?

If you work for a government agency, your taco emoji are federal records.

By Kaveh Waddell, The Atlantic, Jan. 27, 2016

In offices the world over, email servers are gathering dust as workers flock to group instant-messaging platforms to communicate. Slack, one of the most popular platforms, lets users in a team send messages to one another, individually or in groups. It plays nicely with other online services, a feature which has helped it take off among media and technology companies. The company says its platform has attracted more than 2 million active users—including hundreds here at The Atlantic—and it’s valued at nearly $3 billion.

Recently, the government, which often lags behind on technology, has begun to catch on. According to Slack CEO Stewart Butterfield, the General Services Administration, NASA, and the State Department are all experimenting with using Slack for internal communication.

The move is a potential boon to government productivity (notwithstanding the tide of emoji it will likely bring into the work lives of our nation’s public servants). But it could also be a threat to a vital tool for government accountability.

Emails sent to and from most government accounts are subject to Freedom of Information Act requests. That means that any person can ask a federal agency to turn over emails sent to or from government email accounts, and the agency must comply—unless protected by one of nine exemptions, which cover classified material, trade secrets, and information that would invade personal privacy if released. (A FOIA request filed by Jason Leopold of Vice News resulted in the release of tens of thousands of emails from Hillary Clinton’s time as Secretary of State.)

Calls to the FOIA offices of GSA, NASA, and the State Department inquiring about their policies with regards to Slack messages went unreturned.  But a document posted last July by the National Archives and Records Administration mentions Slack specifically, and lays out guidelines for archiving electronic communications.

Read more here.

Q&A: is arrest information protected in Connecticut?

Q.  Do I have to release the name and address of a domestic arrest in Connecticut?

A.  Perhaps. In July 2015, the Governor of Connecticut signed legislation that requires the release of an "arrest record" which includes but is not limited to the name, race. and address of the person arrested, the date, time, and place of arrest and the offense for which the person was arrested."  The legislation became effective October 1, 2015.  Note, however, that such information is required to be disclosed pursuant only "during the period in which a prosecution is pending against the person who is the subject of such record."   

Q&A: gov't employee request for "vouching" info

Q.  I am a federal employee. Can I obtain an unredacted copy of "vouching" information for the federal positions that I previously applied for?

A.  Maybe.  The Privacy Act of 1974 may protect information supplied by third parties concerning an applicant's eligibility, qualifications, or suitability for federal employment.  Specifically, you may not obtain such information if it was provided by a source under an express promise of confidentiality.  For further guidance, you might wish to consult the Department of Justice's Overview of the Privacy Act of 1974 (2015 ed.) (Exemption K5).

FOIA News: Plaintiff challenges State Dep't request to delay Clinton email

Reporter fights Hillary Clinton email delay

By Josh Gerstein, Politico, Jan. 25, 2016

Lawyers for a journalist seeking release of Hillary Clinton's email trove are objecting to the State Department's request for a month-long delay to complete disclosure of the final set of the former secretary of state's messages, warning that allowing the process to drag out until the end of February could deprive voters in early caucus and primary states of information on the Democratic presidential candidate.

State asked for an extension last week, telling U.S. District Court Judge Rudolph Contreras that State officials overlooked more than 7,000 pages of emails that were in need of interagency consultation and that the weekend's winter storm was complicating efforts to process the records.

"Unless and until State explains how over 7,000 pages that were already reviewed and identified as needing review by at least one other agency were lost for up to six months, and then suddenly found again just weeks before the deadline to produce them, the Court should view skeptically State’s assertion that this constitutes a legitimate 'unexpected' event," lawyers Ryan James and Jeffrey Light wrote in a court filing Monday morning on behalf of Vice News reporter Jason Leopold.

Read more here.

FOIA News: State Dep't seeks 1-month extension for Clinton emails

State Department Asks For More Time To Release Last Batch Of Hillary Emails

By Chuck Ross, Daily Caller, Jan. 22, 2016

The State Department is citing a snowstorm expected to hit Washington D.C. this weekend and a need for additional “interagency review” in its request to a federal judge on Friday to grant it an additional month to complete its final release of all of Hillary Clinton’s work-related emails.

Federal judge Rudolph Contreras ruled last year in a Freedom of Information Act (FOIA) lawsuit filed by Vice News’ Jason Leopold that the State Department had to release Clinton’s 55,000 pages of emails on a graduated schedule at the end of each month through Jan. 2016.

But as first reported by Leopold — and as confirmed by The Daily Caller — the State Department’s attorneys filed a motion in court on Friday asking for the deadline to be pushed to Feb. 29.

“In this filing, the Department asked the Court for a one month extension, to February 29th, to finish our production of former Secretary Clinton’s emails,” State Department spokesman Mark Toner said in a statement to TheDC.

The final tranche of Clinton’s emails, Toner said, are “the most complex to process” since they “contain a large amount of material that required interagency review.”

And the processing of the records will by slowed by a brutal snowstorm expected to incapacitate much of Washington D.C. this weekend, the State Department claims in its court filing.

Because the Clinton email team must perform its work onsite…this storm will disrupt the Clinton email team’s current plans to work a significant number of hours throughout the upcoming weekend and could affect the number of documents that can be produced on January 29, 2016,” the filing reads.

Read more here.

Court opinions issued Jan. 21, 2016

Morley v. Cent. Intelligence Agency (D.C. Cir.) -- vacating for a second time the district court's decision that appellant was not entitled to an attorney's fee award with respect to his request for records about CIA officer George E. Joannides.  In rejecting the district court's analysis, the D.C. Circuit clarified that "the public-benefit factor requires an ex ante assessment of the potential public value of the information requested, with little or no regard to whether any documents supplied prove to advance the public interest." 

Al Azzawi v. Dep't of the Army (E.D. Cal.) -- recommendation from magistrate judge to dismiss case because plaintiff failed to submit an administrative appeal to the agency.

Summaries of all opinions issued since April 2015 available here.

Court opinion issued Jan. 15, 2016

Nat'l Sec. Counselors v. Cent. Intelligence Agency & U.S. Dep't of Def. (D.C. Cir.) -- holding that appellant was eligible for attorney's fees because it was a bona fide corporation with a legally recognized, distinct identity from the natural person who acted as its lawyer; reversing decision of the district court, which had viewed appellant as essentially a "one-man operation."  

Summaries of all opinions issued since April 2015 available here. 

FOIA News: Donald Trump Featured in New Batch of Bill Clinton Documents

Donald Trump Featured in New Batch of Bill Clinton Documents

By Alexander Mallin, ABC News, Jan. 20, 2016

It's no secret that Donald Trump and former President Bill Clinton have talked privately in the past, but the public will now get a closer look at their correspondence with the pending release of documents from Clinton's presidency.

The Clinton Presidential Library will soon release 464 pages of material related to Trump and his organization following a Freedom of Information Act (FOIA) request, according to a news release from the National Archives.

Read more here.

Q&A: FOIA jury trial?

Q.   I would like to petition for a jury trial in my federal FOIA case.  How can I do that?

A.   Litigants in FOIA cases do not have the right to a jury trial.  See, e.g., Buckles v. Indian Health Serv./Belcourt Serv. Unit, 268. F. Supp. 2d 1101, 1102-1103 (D.N.D. 2003).   Nor am I aware of any FOIA case in which a court has granted a motion or demand for a jury trial.