Q&A: airplanes flying amok

Q.  I would like to inquire about the cost of the white/blue trim small aircraft that fly all day in my neighborhood.  I do not live near a major airport.  The planes are loud and plentiful (every 2 minutes), and some of them have STATE printed in blue while others have numbers (for example N525ER and various others).  Are these government planes? I would like to know the cost to the taxpayer as well as the purpose of the aircraft if, in fact, these are government planes. 

A.  You can find airline registration information on the Federal Aviation Administration's website.  If you would like to make a FOIA request to the FAA, follow these agency instructions.   

Court opinion issued Feb. 1, 2016

Kalu v. Internal Revenue Serv. (D.D.C.) -- holding that the FBI properly relied upon Exemption 7(E) in refusing to confirm or deny the existence of records indicating whether plaintiff was on an agency "watch list."  

Summaries of all opinions issued since April 2015 available here.

FOIA News: Emails: Hillary Clinton aides sought non-State PC for private account

Emails: Hillary Clinton aides sought non-State PC for private account

CBS News, Feb. 1, 2016

Emails released to conservative watchdog group Judicial Watch suggest that while Hillary Clinton was secretary of state, the State Department planned to accommodate her private email server by setting up a separate computer network in an office "across [the] hall." The arrangement was made after Clinton's chief of staff, Cheryl Mills, asked about accessing web email "using a non-DOS [Department of State] computer."

Judicial Watch obtained the emails through a Freedom of Information Act (FOIA) lawsuit requesting information about Clinton's private email server.

Read more here.

FOIA News: DOJ Lies To 'FOIA Terrorist' Jason Leopold; Claim They Have No Documents On Aaron Swartz

DOJ Lies To 'FOIA Terrorist' Jason Leopold; Claim They Have No Documents On Aaron Swartz

By Mike Masnick, techdirt, Feb. 1, 2016

Back in 2013, not long after Aaron Swartz's tragic suicide, reporter Kevin Poulsen (who had also worked with Swartz on what became SecureDrop, the system for whistleblowers to anonymously submit documents to journalists) submitted a Freedom of Information Act with the Department of Homeland Security about what info it had on Swartz. There were some legal fights about it, but eventually DHS was forced to release the documents, which now reside at a site set up by Poulsen called SwartzFiles.com. These documents revealed things like the government's weird infatuation with the Guerrilla Open Access Manifesto, that many believe was written (at least in part) by Swartz (there's at least some dispute over this). 

Meanwhile, Jason Leopold, who uses FOIA requests so frequently and so effectively that the DOJ once labeled him a "FOIA Terrorist," submitted a similar request with the Justice Department -- specifically targeting the US Attorney's Office in Massachusetts -- which is the office out of which Swartz's case was prosecuted. Obviously, they have plenty of such documents. In fact, in Poulsen's DHS Swartz files there are emails between DHS and DOJ folks. But, an astounding three years and 11 days after Leopold submitted his FOIA request, the DOJ has told him it has no responsive documents.

Read more here.

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.