FOIA Advisor

Court opinions issued Mar. 29, 2016

Court Opinions (2015-2024)Allan BlutsteinComment

Weikamp v. U.S. Dep't of the Navy (N.D. Ohio) -- denying request for costs and attorney's fees after determining that agency's withholding of contract-related  information was not unreasonable and that other entitlement factors were neutral. 

Justice v. Mine Safety & Health Admin. (S.D. W. Va.) -- ruling that the agency properly relied upon Exemptions 5 and 7(C) to redact information from employee interviews concerning plaintiff's administrative complaint.     

Judicial Watch, Inc. v. Dep't of State (D.D.C.) -- granting limited discovery regarding the adequacy of the Department of State's search for requested records concerning Ambassador Rice's talking points on Benghazi attack. 

Envtl. Integrity Project v. U.S. Envtl. Prot. Agency (D.D.C.) -- holding that Exemption 4 protected data submitted by businesses to help the agency to draft regulations and that the Clean Water Act did not displace the provisions of the FOIA. 

Pinson v. U.S. Dep't of Justice (D.D.C.) -- determining that the FBI properly withheld certain information responsive to plaintiff's nearly three dozen requests pursuant to Exemptions 3, 6, 7(A), 7(C), 7(D), and 7(E), but declining to dismiss certain claims after finding that plaintiff might not have received mail sent by the agency.

Summaries of all opinions issued since April 2015 available here

FOIA Focus: Frank Vance, Manager of Disclosure Services & FOIA Officer, Office of the Comptroller of the Currency, U.S. Dep't of the Treasury

FOIA Focus (2015-2021)Allan BlutsteinComment

How long have you been working in the FOIA field?   
I have worked in the FOIA field since August 1984.

Where did you get your start and what did you do?  
I was hired as a FOIA Specialist, GS-7.  I was responsible for responding to FOIA requests and to serve as a Press Spokesman for the Office of the Comptroller of the Currency.

How long have you been at the Office of the Comptroller of the Currency and how did you find your way there?  
I began my career in the federal government in 1978 as a clerk/typist for the OCC.  In 1980, I became the Publications Control Officer and managed our publications sales and subscriptions at the OCC.  In 1983, I moved to the Department of the Army, Army Office Chief of Chaplains as an Ecclesiastical Information Assistant.  I then returned to the OCC in August 1984 to serve as a press spokesman and handle FOIA.  In April 1989, I became the Chief of the FOIA Branch, Information Services Division at the Federal Home Loan Bank Board.  In October 1989, the FHLBB was dissolved and became the Office of Thrift Supervision.  (I have the distinction of being the FHLBB’s final FOIA Officer and the OTS’ first FOIA Officer.)  In February 1990, I returned to the OCC as it FOIA Officer, where I have been ever since.  In this position, I am the third FOIA Officer the agency has ever had.  Currently I am acting as the Manager of the Editorial Services Unit as well as the Manager of Disclosure Services & FOIA Officer.  I’m acting in the other job until a new person is selected.

What are your current job duties?
Due to my dual roles now in separate managerial functions, I supervise a total staff of 14.  The Editorial Staff encompasses 6 professionals; Disclosure encompasses 8 individuals including six specialists and two administrative professionals.  Not only do I manage the work of all those individuals, I also assist my Director in a host of unrelated jobs including job postings, budget, purchase card approvals, and other admin functions.

What is the most common FOIA request you receive?
Requests for supervisory information about banks and federal savings associations.

What is the most unusual FOIA request you have ever seen?
A well-known individual had made a request to a much larger agency.  Oddly enough, that agency referred a small universe of documents that were from the OCC.  At the time, that other agency had a backlog of over 5 years and his request was right at the 5-year mark when it was referred to me.  We processed the request well within the statutory deadline.  A few days later, the famous requester called me personally to complain about the handling of his request.  I calmly explained that I understood his frustration, but that we responded promptly upon receipt of the referral from the other agency.  I then remembered that we had a “PUBLIC FILE” on his case and asked if he was aware of that.  He was shocked.  I asked if he’d like that…and he said yes.  I requested he send me a request for it, but that I would get the documents back from the Federal Records Center.  I photocopied the entire file and sent it to him at no charge.  He was totally thankful to have received that material and was amazed that we had such a file and that he got it so promptly.  I really felt good to be able to help him.

Of all the FOIA requests that you have worked on, which attracted the most media attention?
There have been many:  information about bank failures and the “too big to fail doctrine,” specific “bad actors” at specific banks, documents relating to the “independent foreclosure review,”  documents about former senior OCC officials,  the S&L bailout, the Clintons and Whitewater, are a few.

What do you like and not like about working in the FOIA field?
I really enjoy the interaction with the public.  At the end of the day, I like feeling as though I have helped in some small way.  The thing I really don’t like is that FOIA always seems to be at end of everyone’s food chain.  It only becomes a major issue when something happens negatively.

Which FOIA exemption or privilege do you find the most challenging and why?
The OCC is a pretty transparent organization.  We make a lot of materials publicly available on our Web site proactively.  The few denials we do are generally done under the authority of Exemption (b)(8).    My staff and I work very hard to make sure we don’t abuse our right to use it.  

Where were you born/grow up?  
I’m a native of Huntington, WV.

Where did you go to school and what did you study?  
I went to Marshall University, Huntington, WV.  I studied counseling and rehabilitation. 

What was your first job ever?  
At a big box department store that was locally owned and operated.  What did you like or not like about it?   All I will say about it is that I hated working there and lasted for three months.

What do you like to do in your spare time?  
I serve on the Board of Directors of my Homeowners Association.  I also serve as the Vice Moderator at the Metropolitan Community Church of Northern Virginia, Fairfax VA.   My passion is photography and videography.  I’ve shot weddings and other special events.  

If you could meet any historical icon, of the past or present, who would it be and why?  
Perhaps Abraham Lincoln because he created The Office of the Comptroller of the Currency in 1863.  

What is your favorite book?   Shelby Foote’s Civil War trilogy.  

Favorite movie?  Gone With The Wind.  I think I see a trend…I’m a real Civil War buff.  Anything Civil War gets my attention.

What are you really bad at that you’d love to be great (or better) at?  
To focus better.  I suffer from Attention Deficit Disorder and it can be challenging.

FOIA News: Fight Over Debt Collection Records

FOIA News (2015-2025)Kevin SchmidtComment

Fight Over Debt Collection Records

By Michael Stratford, Inside Higher Ed, Mar. 31, 2016

The American Civil Liberties Union and National Consumer Law Center on Tuesday asked a federal court to force the U.S. Department of Education to turn over various documents that show how the government collects student loan debt from defaulted borrowers.

The groups filed a lawsuit against the Education Department, accusing it of violating the Freedom of Information Act by failing to release information about the department’s debt collection policies and its oversight of the private companies hired to collect student loans.

Among the questions that the groups are seeking to answer, they said, is whether the Education Department’s debt collection practices disproportionately affect borrowers of color, who are more likely to have student loan debt in the first place.

Read more here.

FOIA News: Washington Post Profiles Judicial Watch

FOIA News (2015-2025)Kevin SchmidtComment

Judicial Watch, pursuing the Clintons like Inspector Javert for two decades, scores again

By Fred Barbash, Washington Post, Mar. 30, 2016

If you, like at least a quarter of the American electorate, were not born or were still in footies or watching “Barney” when the first Hillary Clinton “scandal” made the cover of Time magazine in 1994 for “clouding her image,” fret not. A conservative watchdog group called “Judicial Watch,” which was on the case then, is still on it now and is more than happy to fill you in.

Its band of expert Freedom of Information Act lawyers — and make no mistake, they are good — continue to plumb the depths of what was called in the mid-’90s the “Whitewater controversy,” the “Whitewater scandal” or the “vast right-wing conspiracy.”

In fact, just this week, Judicial Watch announced it was “asking a federal court to order the National Archives and Records Administration to release draft criminal indictments of Hillary Clinton” stemming from that probe. While others were tried and convicted after an independent counsel probe, Clinton was not charged with breaking any laws.

Read more here.

Court opinions issued Mar. 24-25, 2016

Court Opinions (2015-2024)Allan BlutsteinComment

Mar. 25, 2016

Sanchez-Alaniz v. Fed. Bureau of Prisons (D.D.C.) -- concluding that the agency conducted an adequate search, properly withheld information under Exemptions 7(C) and 7(F), and released all reasonably segregable information.  Further, the court found that plaintiff failed to exhaust his administrative remedies with respect to one of his requests.

Goldstein v. Treasury Inspector Gen. for Tax Admin. (D.D.C.) -- finding that TIGTA failed to carry its burden of showing that Exemption 7(C) applied to records of investigation of certain IRS employees, but that same records fell within ambit of Exemption 6.   The court found, however, that TIGTA failed to provide sufficient details about the segregability of of records containing return or return information to which plaintiff might be entitled under 26 U.S.C. § 6103.  

Goldstein v. Internal Revenue Serv. (D.D.C.) -- ordering IRS to reprocess seven of ten categories of tax records requested by the heir of father's estate, but finding that agency properly withheld a telephone number under Exemption 6, a Discriminant Function score under Exemption 7(E), and corporate tax returns under 26 U.S.C. § 6103(e)(1)(D).  

Mar. 24, 2016

White v. McDonald (N.D. Okla.) -- dismissing action as moot because the Department of Veterans Affairs had produced all requested records to plaintiff subsequent to the filing of the lawsuit.

Edelman v. Sec. & Exch. Comm'n (D.D.C.) -- granting in part and denying in part the parties' motions for summary judgment concerning various records related to the Empire State Realty Trust, whose property holdings include the Empire State Building.  Of note procedurally, the court dismissed one claim because plaintiff had neglected to appeal the substantive determination issued by the agency upon remand from plaintiff's initial appeal, which merely disputed the lack of a response.  The court acknowledged that "there may be circumstances under which requiring an appeal after an agency remands a case to the processing officer would not further the purposes of the exhaustion requirement.  For instance, where an agency initially responds to a FOIA request on the merits, the requester appeals, and the agency issues the same response on remand, the requester might argue that the purposes of the exhaustion requirement would not be furthered by an additional—and arguably futile—appeal."  Further, the court rejected the agency's determination that the meeting notes of SEC attorneys constituted "personal records" rather than "agency records," employing the D.C. Circuit's "totality of the circumstances" test.  The court found that the SEC conducted reasonable searches and that, with the exception of one document, it had established that Exemption 5 protected certain withheld information.

Summaries of all opinions issued since April 2015 available here.

FOIA News: New search engine for gov't records

FOIA News (2015-2025)Allan BlutsteinComment

FOIA Mapper launches first-of-its-kind search engine for offline government records

PRLog, Mar. 29, 2016

Government agencies store an enormous amount of information in offline databases, far more than what is available online as open data. And in theory, anyone has the right to access it through a Freedom of Information Act (FOIA) request. However, the catch is that most government databases are not documented online, so there is no practical way of knowing what to ask for.

FOIA Mapper, a winner of the 2016 Knight Foundation News Challenge on Data, aims to solve this problem by collecting information about these opaque offline databases and organizing it into a searchable catalog - a search engine for offline government data.

Users can search FOIA Mapper for any topic and it will return a list of what information exists, which government agencies have it, the format in which it is stored, and how to request the information under the Freedom of Information Act.

FOIA Mapper also allows users to search a database of past FOIA requests to see what other people and news organizations are requesting.

The tool is developed by Max Galka, an entrepreneur and independent data journalist (Metrocosm).

Find more information at https://foiamapper.com

FOIA News: Congress evades the FOIA

FOIA News (2015-2025)Allan BlutsteinComment

Why FOIA Obligations Don't Apply To Congress

By Charles S. Clark,  Gov't Executive, Mar. 25, 2016

Agencies employees frustrated by oversight demands of lawmakers have often wondered why the public disclosure obligations under the 50-year-old Freedom of Information Act do not apply to Congress itself.

Sen. Patrick Leahy, D-Vt., and some in the transparency advocacy community have in the past pressed for more disclosure requirements for lawmakers, as has the Obama administration (though it removed its own Office of Administration from FOIA coverage a year ago).

In a press briefing last June, White House spokesman Josh Earnest jabbed Congress after an oversight hearing criticized the administration for having processed only 647,000 FOIA requests the previous fiscal year.

"I would note that that is 647,000 more FOIA requests than were processed by the United States Congress," he told reporters. "And those who are interested in advocating for genuine transparency and government should advocate for Congress being subject to those kinds of transparency measures."

To no one’s surprise, the FOIA reform bills that have cleared Congress in the past year do not contain any language broadening the disclosure demands on lawmakers themselves.

Read more here.

 

Court opinions issued Mar. 22, 2016

Court Opinions (2015-2024)Allan BlutsteinComment

Forsythe v. U.S. Nat'l Labor Relations Bd. (E.D.N.Y.) -- adopting magistrate judge's report and recommendation because plaintiff failed to clearly object to the agency's specific withholdings.

Logan & Lowry, LLP v. U.S. Dep't of Interior (N.D. Okla.) -- ruling that the Office of Inspector General performed a reasonable search for responsive records and that plaintiff was neither eligible nor entitled to an award of fees notwithstanding it untimely production of records.

Klayman v. Cent. Intelligence Agency (D.D.C.) --  determining that the CIA properly relied upon Exemptions 1 and 3 in refusing to confirm or deny the existence of records concerning an alleged CIA contractor against whom plaintiff had filed a civil lawsuit; rejecting plaintiff's argument that the agency had officially acknowledged the individual at issue as a CIA contractor.    

Summaries of all opinions issued since April 2015 available here.

Court opinions issued Mar. 21, 2016

Court Opinions (2015-2024)Allan BlutsteinComment

Poulsen v. Dep't of Homeland Sec. (D.D.C.) -- awarding plaintiff $22,588.50 in fees and $350 in costs for prevailing in lawsuit that sought access to Secret Service records about Aaron Swartz, an Internet activist who committed suicide after being prosecuted by federal government; reducing requested amount by approximately 40 percent primarily because plaintiff relied upon incorrect matrix to calculate hourly rates.

A Better Way for BPA  v. U.S. Dep't of Energy Bonneville Power Admin. (W.D. Wa.) -- dismissing suit because the initial request was submitted by an individual who did not clearly state that she was acting on behalf of the requester; to the contrary, she indicated that the request was being made by an individual for personal use rather than by a company for use in its business.

Gahagan v. U.S. Citizenship & Immigration Servs. (E.D. La.) -- awarding plaintiff $12,676 for attorney's fees and $462.87 for costs after obtaining ten pages of records that agency claimed -- but did not establish -- were merely duplicates; reducing number of hours calculated by plaintiff by 25 percent due to lack of billing judgment and further reducing his hourly rate from $300 to $200.   

Summaries of all opinions issued since April 2015 available here.