FOIA News: Clinton Email Issues Shake Up State Dept. FOIA Operations

Clinton Email Issues Shake Up State Dept. FOIA Operations

By Charles S. Clark, Government Executive, Feb. 24, 2016

As unanswered questions about her private email server continue shadowing Hillary Clinton’s presidential campaign, the State Department she once led remains on the receiving end of criticisms, legal actions and disclosure requests involving the Freedom of Information Act.

Most observers are focused on an ongoing FBI investigation of the role of classified information in Clinton’s private email transmissions. But the State Department’s inspector general is also on the case, and an IG spokesman told Government Executive on Tuesday his office “plans to issue another report on records management and security issues related to the use of non-departmental systems.”

Also on Tuesday, the conservative legal group Judicial Watch won a victory in U.S. District Court when Judge Emmett Sullivan agreed to allow a new discovery phase in the group’s FOIA lawsuits against the State Department.

Read more here.

Court opinions issued Feb. 22-23, 2016

Feb, 23, 2016

Peeler v. Fed. Bureau of Investigation (D. Conn.) -- determining that the FBI conducted a reasonable search in response to prisoner's request for records associated with his personal pager number.

Feb. 22, 2016

Woods v. Elec. Surveillance Unit (D.D.C.) -- ruling that the Department of Justice's Criminal Division properly withheld electronic surveillance records from prisoner pursuant to Exemption 3, in conjunction with 18 U.S.C. §§ 2517 and 2518(8)(b), as well as Exemption 5 (deliberative process and attorney work product privileges).  

Lapp v. Fed. Bureau of Investigation (N.D.W.Va.) --   finding that the FBI properly withheld certain fingerprint-related information pursuant to Exemption 7(E) and that it conducted an adequate search. 

Summaries of all opinions issued since April 2015 available here.

FOIA News: National Press Club Journalism Institute to host FOIA panel

PRNewswire-USNewswire, Feb. 23, 2016

The National Press Club Journalism Institute will host a panel of experts March 16 for a discussion on how the U.S. Freedom of Information Act is being applied and how it can be improved.

FOIA is one of the most important tools at journalists' disposal for uncovering government information. However, nearly a half-century since its inception, many observers say the FOIA process is hamstrung by delays and overly broad redactions.

The March 16 panel, which will run from 6:30pm until 8pm, will be comprised of four experts who are intimately familiar with the FOIA process, and each of them has a singular perspective on the subject:

• Jason Leopold, senior investigative reporter at Vice News;
• David Sobel, counsel at Electronic Frontier Foundation and head of its FOIA litigation project;
• Michael Doyle, legal affairs correspondent, McClatchy Newspapers' Washington Bureau;
• James Holzer, director of the Office of Government Information Services (Federal FOIA Ombudsman).

Christine Walz, an associate at Holland & Knight law firm, and an expert on FOIA, will moderate the panel.

The U.S. FOIA panel will be complemented by a separate panel discussion focusing on government records access in other countries. Both are part of a series of events on government transparency at the National Press Club during Sunshine Week, March 14 through March 18.

Tickets for the event will be $5 for Press Club members and $10 for non-members. Register here.

The National Press Club Journalist Institute is the non-profit affiliate of the National Press Club, the world's leading professional organization for journalists. Through its Press Freedom Committee, the Institute promotes a transparent global society through an independent press.

Contact:
Rachel Oswald – vice chair, NPC Press Freedom Committee: rachelm.oswald@gmail.com, 202 486-9173

National Press Club
529 14th Street NW
13th Floor - Zenger Room
Washington, DC 20045

FOIA News: Judge grants discovery in FOIA case pertaining to Clinton's email

Judge threatens subpoena against Clinton over emails

By Stephen Dinan, The Washington Times , Feb. 23, 2016

A federal judge warned Tuesday that he may have to subpoena former Secretary of State Hillary Clinton’s entire secret email account, saying he has real questions about whether the Obama administration gave her special treatment.

In the interim, Judge Emmet G. Sullivan said he was granting discovery to Judicial Watch, a public interest law firm who’s sued to get a look at the emails, meaning the group will be able to demand the State Department explain who approved Mrs. Clinton’s server, how many officials knew about it, and what accommodations they made to her after her emails become a public issue.

And the judge said he is “inclined” to issue a subpoena eventually, forcing the department to go back to Mrs. Clinton and demand she turn over the entire clintonemail.com system she and top aide Huma Abedin used during their time in the department. He withheld that order for now, saying he will wait to see what discovery produces, but said he’s concerned with the chain of events that led to the emails being shrouded in secrecy for so many years.

“How on earth can the court conclude there is not at minimum a reasonable suspicion of bad faith,” Judge Sullivan said.

Read more here.  

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.