OGIS Blog on Sunshine Week Events

Federal agencies holding Sunshine Week events include: National Archives, Department of Justice, Department of Commerce, and U.S. Nuclear Regulatory Commission.

Get all of the details here.

FOIA News: FOIA 'Reading Room' Case Heads for Do-Over

FOIA 'Reading Room' Case Heads for Do-Over

By Adam Klafeld, Courthouse News Service, Mar. 10, 2016

A watchdog group must try again if it wants to force the Department of Justice's Office of Legal Counsel to share documents in a so-called "FOIA Reading Room," a federal judge ruled.

Citizens for Responsibility and Ethics in Washington, a Washington-based advocacy group, has been fighting for nearly three years to get the Justice Department to automatically subject its subagency's legal opinions to public scrutiny.

Currently, the public can use the Freedom of Information Act to force the department to release specific legal opinions upon request.

Hoping to streamline this process, the watchdog sued the department under the Administrative Procedure Act to make the Office of Legal Counsel set up an online "reading room" for all such documents.

On Thursday, U.S. District Judge Amit Mehta found that the case must be filed again under the FOIA statute in order to have any chance of succeeding.

Read more here.

FOIA News: Progress on FOIA reform bill

Sessions set to remove opposition to FOIA reform bill

By Mario Trujillo, The Hill, Mar. 10, 2016

Sen. Jeff Sessions (R-Ala.) signaled Thursday that he would remove his opposition to a bill to reform the government's open records laws after some of his changes were accepted. 

That could mean the bill to strengthen the Freedom of Information Act is free to move forward on the Senate floor. Sen. John Cornyn (R-Texas), the lead sponsor, previously told National Journal he was hoping to advance the bill in the next week. 

"So are we now OK with it?" Sessions asked one of his staffers during a brief interview with The Hill, after a staffer told him that some of his changes had been accepted. 

After the staffer signaled that the changes would allow him to support the bill, Sessions said with a smile, "OK."

Sessions, who had not been fully briefed on the deal, did not describe what changes he had been looking for. Cornyn's office did not respond to a request for comment. 

The Judiciary Committee approved the bill early last year, but it has not received a vote on the floor. A similar bill passed the House in January. 

Last March, Cornyn had attempted to move the bill on the floor through unanimous consent. But Sessions had put a hold on it, according to emails between his staffers and the Justice Department that were released Wednesday. The emails revealed the Justice Department strongly opposed similar legislation last Congress. 

Sen. David Vitter (R-La.) also had a brief hold on the bill. But he dropped it days ago, according to an aide. One congressional source said those were the only two holds on the bill. 

Court opinions issued Mar. 4, 7, & 9, 2016

March 9, 2016

Ladeairous v. U.S. Dep't of Justice (D.D.C.) -- finding that it was reasonable for FBI to search for records concerning plaintiff by searching agency's main and cross-reference files by plaintiff's name and social security number.

Lowery v. Hart (E.D. Cal.) -- denying plaintiff's motion to set aside 1998 court decision concerning plaintiff's request for photographs of a experimental Piper Tomahawk aircraft, which plaintiff now alleges were deliberately hidden by an NTSB air safety investigator. 

Orlansky v. Dep't of Justice (D.D.C.) -- holding that Executive Office for United States.Attorneys properly invoked Exemption 5 to withhold records concerning the recusal of a U.S. Attorney from certain cases; further holding that EOUSA was not required to answer plaintiff's questions about why such recusal was necessary. 

March 7, 2016

Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice (D.D.C.) -- dismissing suit to compel DOJ to publish the legal opinions of the Office of Legal Counsel pursuant to section 552(a)(2) of FOIA, because plaintiff brought its suit under the Administrative Procedure Act instead of FOIA.   

Am. Ass'n of Women v. U.S. Dep't of Justice (D.D.C.) -- ruling that the FBI properly withheld records pertaining to the subject matter of a Los Angeles Times article pursuant to Exemptions 1, 3 , 6, 7(A), 7(C), 7(D), and (7)(E).  The court further ruled that plaintiff failed to establish that the FBI had officially acknowledged or disclosed the requested records.

March 4, 2016

Competitive Enter. Inst. v. U.S. Envtl. Prot. Agency (D.D.C.) -- denying without prejudice EPA's motion for summary judgment because EPA failed to demonstrate that it timely responded to plaintiff's administrative appeal before plaintiff filed suit; ordering EPA to provide a technical and complete explanation of the technology used to process plaintiff's appeal, including an explanation of how EPA received plaintiff's appeal only four days after plaintiff emailed it.   

Summaries of all opinions issued since April 2015 available here.

Q&A: Attention Walmart shoppers

Q.  I was involved in an incident in the parking lot of a Walmart store where a cart hit my car.   I have been to the store several time to ask for the report that would include pictures and correspondence that was sent to their insurance company.  I was told I cannot get the information.  Is this information covered under FOIA?

A.  Records of private companies are not typically available through the federal Freedom of Information Act or state open records laws.   For further assistance, you might wish to consider contacting a lawyer licensed in your state or a legal assistance organization.  

FOIA News: New documents show the Obama admin aggressively lobbied to kill transparency reform in Congress

New documents show the Obama admin aggressively lobbied to kill transparency reform in Congress

By Trevor Timm, Freedom of the Press Foundation, Mar. 8, 2016

New documents obtained through Freedom of the Press Foundation’s lawsuit against the Justice Department reveal that the Obama administration - the self described “most transparent administration ever” - aggressively lobbied behind the scenes in 2014 to kill modest Freedom of Information Act reform that had virtually unanimous support in Congress.

Three months ago, we sued the Justice Department (DOJ) under the Freedom of Information Act (FOIA) for communications between the DOJ and Congress, since there were vague reports that the DOJ may have opposed the bill - despite much of it being based word-for-word based on the Justice Department’s own policies.

Today, we are publishing a detailed memo authored by the Justice Department that strongly objected to almost every aspect of FOIA reform put forth by the House of Representatives at the time.

Read more here.

FOIA News: SCOTUS short-lister gets Osama bin Laden porn lawsuit

SCOTUS short-lister gets Osama bin Laden porn lawsuit

By Josh Gerstein, Politico, Mar. 8, 2016

A judge reportedly on President Barack Obama's shortlist for the Supreme Court now has a somewhat less weighty issue to mull: whether dead Al Qaeda leader Osama bin Laden's porn stash should be released to the public.

The conservative group Judicial Watch filed a lawsuit Monday, demanding that the Central Intelligence Agency comply with a Freedom of Information Act request submitted last year for pornographic materials recovered during the May 2011 U.S. raid on bin Laden's compound in Abbottabad, Pakistan.

The suit was filed in U.S. District Court in Washington and assigned to Judge Ketanji Brown Jackson, an Obama nominee who has appeared on numerous lists of judges whom Obama might nominate to fill the vacancy created by the death of Justice Antonin Scalia last month.

Read more here.

FOIA News: DoD wants $660M to respond to Freedom of Information request on "Hotplugs"

DoD wants $660M to respond to Freedom of Information request on "Hotplugs"

By Cory Doctorow, Boing Boing, Mar. 7, 2016

The Department of Defense sent Muckrock a demand for $660 million as a requirement for fulfilling a Freedom of Information Act request for records about the Hotplug, a gadget that allows you to transport computers without shutting them down -- used by law enforcement to move suspect computers to forensic facilities without shutting them down and potentially parking drives in an encrypted state.

Read more here.

Court opinions March 2 & 3, 2016

March 3, 2016

Bartko v. U.S. Dep't of Justice (D.D.C.)

March 2, 2016

Rozema v. U.S. Dep't of Health & Human Servs. (N.D.N.Y.) -- finding that the FDA properly withheld certain information regarding the quantities of menthol contained in cigarettes pursuant to Exemption 3, in conjunction with 21 U.S.C. § 387f(c), as well as Exemption 4.  Notably, in reaching its Exemption 4 determination, the court expressly declined to adopt the Critical Mass test.

Schultz v. Fed. Bureau of Investigation (E.D. Cal.) -- determining that the FBI properly relied upon Exemptions 7(C) and 7(D) to protect records concerning two confidential informants involved in plaintiff's criminal case.

Garcia v. U.S. Citizenship & Immigration Servs. (D.D.C.) -- concluding that the USCIS adequately searched for records of an agency adjudication on plaintiff's application in 1981 for lawful-permanent-resident status.   

Summaries of all opinions issued since April 2015 available here.

FOIA News: ODNI to revise mandatory declassification review fees

ODNI Will Revise Declassification Fee Policy

By Steven Aftergood, Federation of American Scientist, Secrecy News, Mar. 4, 2016

In response to criticism of the hefty fees that could be charged to public requesters in its new Mandatory Declassification Review (MDR) rule, the Office of the Director of National Intelligence has agreed to modify the rule.

The revised rule will adopt the more flexible and forgiving approach used in ODNI’s Freedom of Information Act (FOIA) program.

“We will pull back the MDR rule and swap out the fee structure there for the fee structure in the FOIA policy,” said Jennifer Hudson, director of the ODNI Information Management Division.

This represents a substantial change. In comments on the rule submitted yesterday by the Federation of American Scientists, we recommended such a change. We noted that the MDR fee schedule was inconsistent in several respects with existing law and policy and, in particular, that it differed from the cost recovery procedures in ODNI’s FOIA program:

*     The MDR rule would charge 50 cents per page for photocopying, but ODNI charges only 10 cents per page for responses to FOIA requests.

*     The MDR rule would have made requesters responsible “for paying all fees,” but ODNI always waives costs of $10 or lower under FOIA.

*     The MDR rule did not provide for discretionary fee waivers for public interest or other reasons, but the FOIA policy does.

Now all of these discrepancies will be eliminated. Perhaps most significantly, “We will also make sure that there is room [in the MDR process] for discretion in charging fees,” Ms. Hudson said in an email message. “I’m sure you know from looking at our FOIA reports that we have exercised our discretion to not charge fees quite a bit in the past.”

She noted, however, that “The search/review charges are identical” under the proposed MDR rule and under FOIA. “FOIA just breaks [the charges] down into 15 minute increments where the MDR rule is by the hour. The end result is the same.”

“At the end of the day, I don’t think it will make as much of a difference as people think,” she said.