Court opinions issued Feb. 16-Feb. 17, 2016

Feb. 17, 2016

Elec. Privacy Info. Ctr. v. Custom & Border Protection (D.D.C.) -- denying agency's summary judgment motion with respect to records concerning the Analytical Framework for Intelligence system.  The court found that the agency's declaration was deficient because: (1) it provided only a categorical description of the material withheld, without providing any exhibits or page references to allow the court to assess the agency's withholdings; (2) it did not sufficiently describe the underlying law enforcement techniques and procedures that the agency seeks to protect.

Mitchell v. Samuels (D.D.C.) -- ruling that plaintiff failed to establish that the Federal Bureau of Prisons had received his FOIA request, which the agency averred was not reflected in its FOIA tracking database. In reaching its decision, the court held that plaintiff's production of a copy of his FOIA request and a USPS tracking number was not sufficient evidence to deny the government's motion for summary judgment. 

Feb. 16, 2016

Pinson v. U.S. Dep't of Justice (D.D.C.) -- determining that the Office of Information Policy performed adequate searches in response to requests for various records from the Attorney General's office, but that it improperly withheld -- under Exemption 6 -- the name and identifying information of a third-party who submitted a letter of recommendation in support of Charles Samuels for the position of BOP Director.   

Summaries of all opinions issued since April 2015 available here.

Q&A: FOIA for Virginia residents only?

Q.   I submitted a FOIA request to a public university in Virginia, but it was denied because I am not a Virginia resident. I find it rather odd that only those living in Virginia can have their FOIA request honored.  Is the university giving me a correct reason with a legal basis?  I haven't seen anything to indicate that geography is a dispositive factor in the approval of a FOIA request.

A.  The university's response is correct.  The U.S Supreme Court unanimously ruled in 2014 that Virginia may restrict FOIA requests to State residents.  See also Laura Kebede, Supreme Court rules Va. can deny out-of-state FOIA use, Richmond Times-Dispatch, July 22, 2014.    

Q&A: wage/tax records

Q.  How do I get a copy of my W-2 or 1099?

A.  The quickest way to obtain a copy of a prior year 1099 or W-2 is through your employer.  If that's not possible, you can order copies from the IRS for a fee ($50 per copy) by using Form 4506.  Allow up to 75 calendar days for the IRS to process your request.  Alternatively, you can obtain a transcript of the same information free of charge by using Form 4506-T.   

If you have not received your current year forms by the end of February, you may call the IRS at 800-829-1040 for assistance.  When you call, you should have the following information available:

• Your name, address (including ZIP code), phone number, and social security number,

• Your employer/payer's name, address (including ZIP code), and phone number,

• If known, your employer/payer’s identification number (EIN), and

• An estimate of the wages you earned, your federal income tax withheld, and your dates of employment.

After February, the IRS will contact the employer/payer for you and request the missing or corrected form. The IRS will also send you a Form 4852 (PDF), Substitute for Form W-2, Wage and Tax Statement, or Form 1099-R, Distributions From Pensions, Annuities, Retirement or Profit-Sharing Plans, IRAs, Insurance Contracts, etc., along with a letter containing instructions.

FOIA News: More on Scalia and the FOIA, 1982

A Debate With Scalia

Staff, U.S. News & World Report, Feb. 16, 2016

Supreme Court Justice Antonin Scalia passed away on Saturday in Texas at the age of 79. In 1982, Scalia, who was a professor of law at the University of Chicago at the time, participated in a U.S. News debate about the Freedom of Information Act, explaining why he favored cutting access to government data. New York Times columnist William Safire would later write that the Q&A segment "focused White House attention on" Scalia, helping him get a federal judgeship and aiding what Safire called Scalia's "meteoric rise to contention for the next High Court vacancy."

Why do you feel that the Freedom of Information Act should be cut back?

The Freedom of Information Act – or, more specifically, the 1974 amendments to the act – came out of an era of exuberant, single-minded pursuit of individual objectives. We are now discovering that such tunnel-vision zeal – whether directed toward the environment or automobile safety or freedom of information – is indulged at excessive cost to other important objectives. It is time to remedy the excesses in the 1974 amendments, while not gutting the law or turning away from the desirable goal of freedom of information.

What are some of the changes needed?

For one thing, persons or corporations requesting information under the Freedom of Information Act should pay a larger proportion of the taxpayers' cost of supplying it. I know of one horrible example in which a single request cost the government over $400,000. To say that the government's files should not be kept secret from its citizens is not to say that the government should become the world's largest free library reference service.

Another change needed is in the area of law enforcement and national security. Currently, material in investigative files can be withheld only if one of a number of quite narrow conditions are met. Law-enforcement officers and national-security officials have found those conditions inadequate. Many requests are made by felons with the explicit intention of finding out the names of informants.

My major objection, though, has to do with information about private institutions. When the act was passed, it was seen as a means of revealing what the government was doing, for the benefit of the public at large. But in operation, it has been used largely as a means of revealing what private companies are doing, for the benefit of their adversaries and competitors. 

Read more here.  

FOIA News: Professor Scalia and the FOIA (1982)

THE FREEDOM OF INFORMATION ACT HAS NO CLOTHES

By Prof. Antonin Scalia, Regulation, Mar./Apr. 1982

THE FREEDOM of Information Act (FOIA) is part of the basic weaponry of modern regulatory war, deployable against regulators and regulated alike. It differs, however, from other weaponry in the conflict, in that it is largely immune from arms limitation debate. Public discussion of the act displays a range of opinion extending from constructively-critical-but-respectful through admiring to enthralled. The media, of course, praise it lavishly, since they understandably like the "free information" it promises and provides. The Congress tends to agree with the media. The executive branch generally limits its criticism to relatively narrow or technical aspects-lest it seem to be committing the governmental equivalent of "taking the Fifth." The regulated sector also wishes to demonstrate that it has nothing to hide, and is in any case torn between aversion to those features of the act that unreasonably compromise its interests and affection for those that unreasonably compromise the government's. Through the mutually reinforcing praise of many who should know better, the act is paraded about with the veneration normally reserved for the First Amendment itself.

Little should be expected, then, of efforts now under way in both houses of Congress to revise the act. But however dim the prospect for fundamental change, the FOIA is worth examining, if only as an academic exercise. It is the Taj Mahal of the Doctrine of Unanticipated Consequences, the Sistine Chapel of Cost Benefit Analysis Ignored.

Read more here.

Court opinions issued Feb. 10-Feb. 12, 2016

Feb. 12, 2016

Judicial Watch v. U.S. Dep't of Justice (D.C. Cir.) -- holding that a court order concerning settlement discussions between U.S. House and DOJ with respect to "Fast and Furious" records was too ambiguous on its face to justify withholding requested records; remanding the case to district court for further proceedings, i.e., to clarify the meaning of the court order in question. 

Feb. 11, 2016

Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice (D.D.C.) -- ruling on remand from D.C. Circuit that plaintiff offered sufficient to support the court's use of "LSI-adjusted rates" in calculating award of attorneys' fees.

Feb. 10, 2016

Competitive Enter. Inst. v. Office of Sci. & Tech. Policy (D.D.C) -- finding that: (1) draft versions of agency's final response to plaintiff's Information Quality Act request were properly withheld under deliberative process privilege; (2) agency failed to demonstrate that its communications with a Rutgers University professor fell within the "consultant corollary" principle to the deliberative process privilege; and (3) deliberative process privilege did not protect email discussions of video in which an agency employee had expressed personal opinions.

Summaries of all opinions issued since April 2015 available here.

FOIA News: Donations needed to publish CIA records

This Guy Wants $10K to Scan CIA Docs and Put Them Online

By Stephanie Mlot & Chloe Albanesius, PC, Feb. 12, 2016

Thanks to the Snowden data dump and other hacks, classified data is readily available on the Internet. But oddly, millions of pages of officially declassified CIA documents are only accessible from a small room in Maryland. A new Kickstarter campaign wants to put that data online.

Michael Best needs $10,000 to scan the Central Intelligence Agency's declassified vault and upload it to the Internet Archive. "There are over 10 million pages of CIA documents that have never seen the light of day. It's time to change that," he said.

At the National Archives (NARA) facility in College Park, Md. sits a database with more than 700,000 files and millions pages of declassified CIA intel, known as the CIA Records Search Tool (CREST). But the only way to peruse it is to visit the facility and search via four available computers.

The plan, Best said, is simple: "Scan and upload as much as possible for everyone to access—for free."

Which is where you come in: Backers who pledge $1 or more get to help choose what gets digitized first after Best prints, scans, and processes the millions of pages. The documents will be uploaded to the Internet Archive, where anyone can peruse them online, or download them as a PDF or EPUB file for some light reading.

To get there, though, Best needs $10,000 for a scanner, 13-inch MacBook Air $1,199.00 at Amazon, office supplies, and rewards. He's currently raised about $7,500 with 18 days to go.

Will the CIA and National Archives allow it? As Best points out, those who visit the College Park facility can print out as much as they want. But it's unlikely that anyone has ever tried to print out the entire archive. 

Read more here.

FOIA News: State Dep't to release additonal Clinton emails this weekend

State Dept to release 550 Clinton emails over Presidents' Day weekend

By Julian Hattem,The Hill, Feb. 10, 2016

The State Department will release 550 emails from Hillary Clinton’s private sever this weekend, under pressure from a federal judge who earlier this week appeared visibly annoyed at its delayed efforts.

In a court filing late on Wednesday night, State Department official Eric Stein told the U.S. District Court for the District of Columbia that department staffers have made “significant progress” on preparing the emails for release. 

As a result, the department will now be able to release the roughly 550 emails — which represent roughly 14 percent of the 3,700 remaining Clinton emails — on Saturday, in the middle of the three-day Presidents' Day weekend. The department had previously said that it could not release the emails until late next week.

Releasing the emails on Saturday “provides time to address any additional problems that may arise,” Stein wrote, “as have occurred in the past at this final stage in the process.”

The Obama administration is already more than a week behind schedule on the emails, which were all supposed to have been released by Jan. 29.

But last month, in a surprise announcement shortly ahead of the Iowa caucuses, the State Department said that the last of Clinton’s emails would not be made public until the end of February. 

Before Judge Rudolph Contreras on Tuesday, the administration said that it could not even release a fraction of those emails until at least next Thursday. In Stein’s filing late on Wednesday, however, he claimed that the State Department had brought on “additional resources” that have helped it speed up the process.

Read more here.

Court opinion issued Feb. 9, 2016

Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice (D.D.C.) -- concluding that the FBI conducted an adequate search for records pertaining to its use of drones and Unmanned Aerial Vehicles, and that the agency properly withheld information pursuant to Exemptions 1, 3, 4, 5, and 7(E).

Summaries of all opinions issued since April 2015 available here.

Court opinion issued Feb. 8, 2016

Davis v. U.S. Dep't of the Air Force (D. Mont.) -- granting agency's unopposed motion for summary judgment in case in which agency withheld records of espionage investigation pursuant to Exemptions 1 and 7(E); declining to enter a finding that the agency's espionage investigation was "groundless."  

Summaries of all opinions issued since April 2015 available here.