FOIA News: Nuclear Regulatory Comm'n to host FOIA meeting on Mar. 23, 2016

NRC to Hold Public Meeting March 23 in Rockville, Md., to Discuss FOIA Program

Press Release, U.S. NRC, Office of Public Affairs, NRC News, Mar. 7, 2016

The Nuclear Regulatory Commission will hold a meeting March 23 to provide the public an opportunity to comment on the agency’s Freedom of Information Act (FOIA) program. FOIA gives people the right to request government records. Staff will discuss efforts to improve how the NRC implements the program. Discussions will address transparency, consistency and technology used in the FOIA process.

The meeting will run from 1-3 p.m. in the NRC’s Two White Flint North auditorium at 11545 Rockville Pike in Rockville, Md. The meeting agenda includes presentations by NRC and the National Archives and Records Administration. There will also be specific opportunities for the public to ask questions, express concerns, and make suggestions for additional efficiencies and improvements to the FOIA program.

A telephone bridge line has been set up for those who cannot attend. Those interested should call 1-800-369-1849 and use passcode 1289807. For more information on the issues to be discussed, please contact the NRC’s Roger Andoh at 301-415-5906, or via e-mail at roger.andoh@nrc.gov.

FOIA News: Summary of agency annual FOIA reports

Beefed-Up FOIA Offices Trim Backlog of Requests Governmentwide

By Charles S. Clark, Government Executive, Mar. 18, 2016

As the annual Sunshine Week neared a close, the Justice Department released its governmentwide report on agency Freedom of Information Act responses, showing a record high number of requests processed. Those gains were made possible by more staff handling the requests at a higher cost.

The 100 agencies subject to FOIA transparency requirements received more than 713,168 requests in fiscal 2015 while processing “a record high number of nearly 770,000 requests,” said the annual report posted Thursday. “This strong effort led to a significant 35.6 percent reduction in the government’s overall request backlog of 102,828,” wrote Justice’s Office of Information Policy. The number of FOIA requests received represented a slight decrease of 1,063 from the record set in fiscal 2014.

During the 2015 fiscal year, some 4,122 full-time FOIA staff administered FOIA, an increase of 7 percent over the previous year. For the fifth year in a row, the Defense Department reported the highest number of full-time FOIA staff, though that number fell from 754 in 2014 to 724 currently.

The total estimated cost of all FOIA related activities across government during 2015 rose 4 percent over 2014 to $480,235,968, the report said. For the fifth year in a row, nearly 94 percent of the total cost was attributed to the processing of requests and appeals by agencies, with only 6 percent going to litigation.

For the seventh consecutive year, most document requests (281,138) were directed at the Homeland Security Department, followed by the departments of Justice, Defense, Health and Human Services and Veterans Affairs, in that order. These five agencies draw 67 percent of all FOIA requests, the report said.

The five agencies that received the most requests also processed the most. The overall release rate of requested documents—statutory exemptions require agencies to withhold specified types of documents—was 91 percent.

Court opinions issued Mar. 17, 2016

Salmonson v. Internal Revenue Serv. Dep't of Treasury (M.D. Fla.) -- dismissing plaintiff's claim after determining that plaintiff failed to administratively appeal the agency's FOIA response; further ruling that plaintiff was not entitled to paper copies of records because he had previously accept a CD.   

Shapiro v. Cent. Intelligence Agency (D.D.C.) -- finding that plaintiff's request to the CIA concerning Nelson Mandela might have been unreasonably burdensome, but agency failed to provide the court with evidence of burden; further finding that National Security Agency's Glomar response was proper with respect to any requested information concerning Nelson Mandela as an intelligence target, but that agency was required to search for all other records that plaintiff sought.  

Electronic Frontier Foundation v. Nat'l Sec. Agency (N.D. Cal.) -- ruling that the NSA properly invoked Exemption 1, 3, and 5 (deliberative process privilege) to withhold a document pertaining to protocols and principles used by the government in deciding whether and when to disclose computer security flaws. 

Summaries of all opinions issued since April 2015 available here.

FOIA News: FOIA lawsuit for Petraeus records

FOIA suit seeks records on Petraeus investigation

By Josh Gerstein, POLITICO, Mar. 18, 2016

A newly filed Freedom of Information Act lawsuit is demanding that the federal government fork over records from the investigations that led to former Central Intelligence Agency Director Gen. David Petraeus' guilty plea last year to a charge of mishandling classified information.

The suit, filed Friday in federal court in Washington by Daily Beast reporter Shane Harris and a pro-transparency organization, the James Madison Project, seeks information from three federal agencies — the Justice Department, the Defense Department and the CIA.

Petraeus pleaded guilty in February 2015 to a single misdemeanor count of mishandling classified information by retaining notebooks containing highly classified information at his home without permission and sharing some of those materials with his biographer and paramour, Paula Broadwell. She was an officer in the Army reserve but was not officially authorized to receive the classified materials.

A federal judge in North Carolina sentenced Petraeus to two years probation and a $100,000 fine.

Harris and the transparency group filed a series of FOIA requests last month seeking details on various inquiries the FBI, the CIA and the Pentagon pursued beginning in 2012 after a Florida woman, Jill Kelley, reported to the FBI that she had received messages from someone who appeared to be familiar with her movements as well as those of top military officers and Petraeus.

Read more here.

Court opinions issued Mar. 15, 2016

Platsky v. FDA (2nd Cir.) -- summarily affirming district court's decision that FDA conducted a reasonable search.  

Bustillo v. U.S. Dep't of of Justice (D.D.C.) -- granting summary judgment in favor of Federal Bureau of Prisons because the agency provided access to all records responsive to plaintiff's requests.  

Summaries of all opinions issued since April 2015 available here.

FOIA News: Judicial Watch names Clinton aides to be deposed

Judicial Watch names Clinton Aides to be deposed

By Mark Tapscott, The Libertarian Republic, Mar. 16, 2016

Eight present and past Department of State officials linked to Democratic presidential candidate Hillary Clinton’s private email scandal will be deposed by Judicial Watch in the non-profit government watchdog’s Freedom of Information Act (FOIA) lawsuit if the federal judge hearing the case agrees.

Judicial Watch attorneys told U.S. District Court for the District of Columbia Judge Emmet G. Sullivan Tuesday it wants to depose the following individuals and could complete the depositions within two months of beginning:

• Stephen D. Mull, executive secretary of the State Department from June, 2009, to October, 2012. Mull proposed Clinton use a State Department BlackBerry for email. Her identity would have been protected but the messages would have been subject to the FOIA.
• Lewis A. Lukens, executive director of the department’s executive secretariat from 2008 to 2011. Lukens suggested to Under Secretary of State for Management Patrick F. Kennedy and Clinton Chief of Staff Cheryl Mills that Clinton have a government computer to read messages sent to her clintonmail.com address.
• Patrick F. Kennedy preceded Clinton at the department, having served since 2007. He became Clinton’s primary adviser on technology and information services issues.
• Donald R. Reid, senior coordinator for security infrastructure in the department’s Bureau of Diplomatic Security, a position he has held since 2003. Judicial Watch believes Reid participated in discussions in 2009 about Clinton’s use of the Blackberry and other communications devices to conduct official government business.
• Cheryl Mills, chief of staff throughout Clinton’s tenure as secretary of state.
• Huma Abedin, deputy chief of staff for the entirety of Clinton’s tenure. Abedin also had an email account on the Clinton server and accompanied Clinton whenever she was seen in public.
• Bryan Pagliano, Clinton’s IT guru from her unsuccessful 2008 presidential campaign and the individual who kept the private server located at her New York residence operational while she was at the department.
• The eighth individual would be somebody designed by the department to provide information on the process by which FOIA requests are processed in the agency.

Clinton’s deposition “may be necessary” but would only occur with the judge’s approval and would be “based on information learned during discovery.”

Sullivan granted Judicial Watch’s motion for discovery Feb. 23, 2016, and he is expected to announce his decision on the deposition plan after April 15.

Judicial Watch’s original FOIA request was filed six years ago and unsuccessfully sought information and documents concerning Abedin’s employment status. The litigation was reopened when Clinton’s use of the private server and email address to conduct official business became known in March, 2015.

“This discovery will help Judicial Watch get all of the facts behind Hillary Clinton’s and the Obama State Department’s thwarting of FOIA so that the public can be sure that all of the emails from her illicit email system are reviewed and released to the public as the law requires,” said Judicial Watch president Tom Fitton.

Court opinions issued Mar. 12 & Mar. 14, 2016

Mar. 14, 2016

Cooper v. U.S. Dep't of Justice (D.D.C.) -- ruling that with the exception of one document, DOJ properly invoked Exemptions 7(C), 7(D), and 7(E) to withhold various records concerning plaintiff's prosecution for drug trafficking offenses.

Mar. 12, 2016

Thelen v. U.S. Dep't of Justice (D.D.C.) -- finding that government conducted a reasonable search for records concerning plaintiff's criminal case and properly withheld certain records pursuant to Exemption 3 (grand jury material), Exemption 5 (attorney work-product privilege), and Exemptions 7(C), 7(D), 7(E), and 7(F).

Robbins, Geller, Rudman & Dowd, LLP v. U.S. Sec. & Exch. Comm'n (M.D. Tenn.) -- concluding that the SEC properly invoked Exemption 7(A) to protect records of investigation concerning Walmart's payment of millions of dollars to Mexican officials.

Summaries of all opinions issued since April 2015 available here.

Q&A: Oh, Canada! And W-2 forms.

Q.  Can the Government of Canada track your movements through your passport?  I really need to know the answer to this question. Is this "BIG BROTHER" Canada style?

A.  Your question is unrelated to the open record laws of the United States (which is the purpose of this website), but I nonetheless will answer it.  No.  According to the Canadian government, "[t]he chip in the Canadian ePassport is passive, which means that it does not have a power source. It cannot transmit signals over long distances.  An ePassport must be held within 10 centimetres of a reader in order to be read. The only information that is on the chip is the information from page 2 of the passport. The chip does not transmit or record any other information." See http://www.cic.gc.ca/english/passport/help/epassport.asp.

Q.  Can you FOIA someone's W-2?

A.  A third party's tax return information is protected from disclosure under Exemption 3 of the FOIA, in conjunction with 26 U.S.C. § 6103.   

FOIA News: Senate approves FOIA bill

Senate passes FOIA reform bill

By Mario Trujillo, The Hill, Mar. 15, 2016

The Senate on Tuesday unanimously passed a bill to expand the public's access to government records, after a year of delay. 

The Senate's move means both chambers have now passed similar proposals to strengthen the Freedom of Information Act (FOIA). Differences will still need to be resolved before the measure makes it to President Obama's desk — potentially forcing the administration's hand on a bill it has previously lobbied against. 

"If the president receives this bill, he'll sign it," Sen. Patrick Leahy (D-Vt.) told The Hill. When pressed on whether he had received assurances, he said, "In my 40 years here, I've never said what the White House has told me."

The House passed its bill in January, and the Senate moved forward Tuesday after a deal was struck for a few holdout senators to remove their opposition. 

The legislation led by Sen. John Cornyn (R-Texas) and Leahy would update the open-records law used by journalists, researchers and the public. Many who have dealt with the process complain about delays and unnecessary redactions from agencies. A House committee recently described the law as "broken" in a report.

The update would codify a so-called presumption of openness, which requires federal agencies and other parts of the government to adopt a policy that leans toward the public release of documents. Obama instructed agencies to adopt a similar model when he entered office, but critics say the government hasn't lived up to that promise.

Under the legislation, agencies would have to point to a specific "foreseeable harm" when withholding documents that would typically be exempt from public release. The legislation would also create a single FOIA request portal for all agencies, limit the amount of time that certain documents are exempt from disclosure and make more documents available online, among other things. 

Lawmakers have tried get the bill passed for the past few years, despite opposition from the Justice Department and a handful of other civil enforcement agencies that have quietly opposed the legislation. 

The House and Senate both approved their respective bills last Congress, but Senate passage came so late that it left no time to merge them. The only solution was to have one chamber pass the other's exact language. But fighting between the chambers, and outside lobbying pressure, caused reform to die at the end of the session.  

FOIA News: Pentagon renews request for FOIA exemption

DoD Again Seeks FOIA Exemption for Military Doctrine

By Steven Aftergood, Federation of American Scientists, Secrecy News, Mar. 15, 2016

The Department of Defense last week asked Congress to enact a new exemption from the Freedom of Information Act for military tactics, techniques and procedures, as well as rules of engagement, that are unclassified but considered sensitive. A similar request by DoD last year was not acted upon by Congress.

DoD justified its current proposal as a military necessity, and as a matter of common sense:

“The effectiveness of United States military operations is dependent upon adversaries, or potential adversaries, not having advance knowledge of the tactics, techniques, and procedures that will be employed in such operations. If an adversary or potential adversary has knowledge of such information, the adversary will be better able to identify and exploit any weaknesses, and the defense of the homeland, success of the operation, and the lives of U.S. military forces will be seriously jeopardized.”

This year’s proposal was drafted as an amendment to the existing FOIA exemption for DoD critical infrastructure. So it has some noteworthy features that were not included in last year’s proposal: The use of the exemption would require a written determination by the Secretary of Defense that the public interest does not outweigh the need to protect the information. The Secretary would also have to prepare a written statement of the basis for the use of the exemption. “All such determinations and statements of basis shall be available to the public, upon request….”

The large majority of military doctrinal publications are unclassified and publicly available. A relatively small number are classified and unavailable. But there is a middle category of unclassified publications whose distribution is restricted, which the proposed amendment aims to preserve.

Some recent Army titles that fall in that middle category include, for example: Special Forces Air Operations (ATP 3-18.10), Special Operations Communications System (ATP 3-05.60), and Countering Explosive Hazards (ATP 3-34.20). The Department of Defense does not readily release such titles today, even in the absence of the proposed amendment. But in order to withhold them under FOIA, it must engage in some dubious legal acrobatics, or else practice delay and defiance.

The proposed new FOIA amendment was included in a package of legislative proposals that DoD transmitted to Congress on March 10, 2016.

Read more here.