Court opinions issued Jan. 29, 2016

Rocky Mountain Wild v. U.S. Forest Serv. (D. Colo.) -- finding that: (1)  the agency mistakenly interpreted plaintiff's request as seeking external communications only and was required to search for internal communications; (2) the agency failed to perform an adequate search for the the external communications sought; (3) a portion of records withheld under Exemption 5 were justified, but that agency's Vaughn Index was insufficient with respect to other withheld records; (4) plaintiff conceded the agency's withholdings under Exemption 6; (5) plaintiff's allegations of agency bad faith and a  "pattern and practice" of violating FOIA were not justified by the record.  

Henderson v. U.S. Dep't of Justice (D.D.C.) -- determining that the Executive Office for United States Attorneys conducted an adequate search for certain records concerning plaintiff's criminal case and that it properly withheld identifying information about third parties pursuant to Exemptions 6 and 7(C).  

 Summaries of all opinions issued since April 2015 available here.

Court opinions issued Jan. 26-Jan. 28, 2016

Jan. 28, 2016

Inst. for Policy Studies v. U.S. Cent. Intelligence Agency (D.D.C.) -- granting the government's request to reconsider the court's August 19, 2015 decision, and concluding that the CIA need not search its "operational files" in response to plaintiff's request.

Lucaj v. U.S. Fed. Bureau of Investigation (E.D. Mich.) -- ruling that the Department of Justice (DOJ) properly invoked Exemption 5 and 7(C) to protect requested records about the government's involvement in plaintiff's arrest in Vienna, Austria.  Of note, the court held that communications between DOJ and two foreign governments qualified as "inter-agency" for Exemption 5 purposes because the foreign governments had a common interest with the United States. 

Competitive Enterprise Inst.  v. U.S. Envtl. Prot. Agency (D.D.C.) -- dismissing plaintiff's action as moot because the parties had resolved the underlying dispute set forth in the complaint, namely the propriety of EPA's production schedule (100 of 120,000 pages monthly).  The court rejected plaintiff's argument that the complaint sought to challenge the agency's redactions or that plaintiff alleged or demonstrated a "pattern or practice" of violating FOIA by "slow-walking" requests.   

Jan. 27, 2016

Petrucelli v. U.S. Dep't of Justice (D.D.C.) -- ruling that the Executive Office for United States Attorneys properly relied on Exemption 7(C) to redact the identities of FBI personnel, witnesses, and plaintiff's attorney from correspondence between the plaintiff's criminal defense counsel and government prosecutors.  

Donoghue v. Office of Info. Policy (D.D.C.) -- finding that the FBI demonstrated that it conducted an adequate search for information responsive to pro se prisoner's FOIA request and that it maintained no responsive records.

Jan. 26, 2016

Main St. Legal Servs., Inc. v. Nat'l Sec. Council (2nd Cir.) -- affirming district court's decision that the NSC (i.e., the Council and the NSC System generally) is not an agency subject to FOIA.  In reaching its decision, the Second Circuit relied, in part, upon the statutory function of the Council, which is solely advisory to, and not independent of, the President. 

Ewell v. U.S. Dep't of Justice (D.D.C.) -- determining that the Criminal Division conducted an adequate search for wiretap records concerning plaintiff, a pro se prisoner, and that the agency properly withheld all records pursuant to Exemption 3 (18 U.S.C. § 2518) and Exemption 5 (attorney work-product).

Summaries of all opinions issued since April 2015 available here.

FOIA News: Top secret information withheld from latest batch of Clinton emails

U.S. Declares 22 Clinton Emails 'Top Secret'

By Bradley Klapper, Associated Press, Jan. 29, 2016

The Obama administration confirmed for the first time Friday that Hillary Clinton's home server contained closely guarded government secrets, censoring 22 emails that contained material requiring one of the highest levels of classification. The revelation comes three days before Clinton competes in the Iowa presidential caucuses.

State Department officials also said the agency's Diplomatic Security and Intelligence and Research bureaus are investigating if any of the information was classified at the time of transmission, going to the heart of Clinton's defense of her email practices.

The department published its latest batch of emails from her time as secretary of state Friday evening.

But The Associated Press learned ahead of the release that seven email chains would be withheld in full for containing "top secret" information. The 37 pages include messages a key intelligence official recently said concerned "special access programs" -- highly restricted, classified material that could point to confidential sources or clandestine programs like drone strikes.

"The documents are being upgraded at the request of the intelligence community because they contain a category of top secret information," State Department spokesman John Kirby told the AP, calling the withholding of documents in full "not unusual." That means they won't be published online with others being released, even with blacked-out boxes.

Department officials wouldn't describe the substance of the emails, or say if Clinton sent any herself.

Read more here.

Q&A: military draft status

Q.  What was my draft status in 1966?

A.  You might wish to submit a request to the Selective Service System.  Here is the relevant contact information:

Paula A. Sweeney
FOIA Officer
National Headquarters
Arlington , VA 22209-2425
(703) 605-4100 (Telephone)
(703) 605-4106 (Fax)
FOIA Requester Service Center: Phone: (703) 605-4100
FOIA Public Liaison: Richard Flahavan, Phone: (703) 605-4100
Website: http://www.sss.gov/freedomhome.htm

Q&A: requirements to retain records

Q.  What is the time limit on retention of records under the Act?

A.  The recordkeeping responsibilities of federal agencies are governed generally by the Federal Records Act (FRA), not the Freedom of Information Act.  Pursuant to the FRA, the National Archives and Records Administration approves "records disposition schedules," which identify records maintained by agencies and set forth instructions for their retention and destruction.  Just for illustration, here are the records disposition schedules for the Department of State. Tangentially, FOIA case files of all agencies must be retained for a specified time period.  See General Records Schedule 4.2.

FOIA News: A Single Comma Is All That Stands Between The Public And FOIA'ed Law Enforcement Documents

A Single Comma Is All That Stands Between The Public And FOIA'ed Law Enforcement Documents

By Tim Cushing, techdirt, Jan. 28, 2016

The terrible tale of the missing comma and the damage done may soon come to an end. The EFF is calling on Congress to legislate this apparently missing punctuation back into its list of FOIA exemptions. 

FOIA Exemption 7(E) reads as follows, in reference to the withholding of documents:

would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law

Some courts have read this paragraph as a continuation of a single thought.

The first interpretation, which EFF believes is the right one, reads the entire sentence as being subject to the last clause that states "if such disclosure could reasonably be expected to risk circumvention of the law." In other words, records concerning both "techniques and procedures for law enforcement investigations or prosecutions" and "guidelines for law enforcement investigations or prosecutions" can only be withheld if "disclosure could reasonably be expected to risk circumvention of the law."

This subjects FOIA rejections to a higher standard, requiring both sets of documents ("techniques and procedures," "guidelines") to be proven to be circumvention risks if released. The other reading of this sentence with the crucial missing comma affords the first set of documents ("techniques and procedures") blanket protection from FOIA requests.

Read more here.

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).