FOIA News: Society of access professionals to host former chief of staff to John Moss on April 21, 2016

To celebrate the 50th anniversary of the Freedom of Information Act, the American Society of Access Professionals is hosting a luncheon on April 21, 2016, featuring Michael Lemov, who served for eight years as chief counsel to John Moss, the father of the Freedom of Information Act.  Mr. Lemov, now an attorney in Maryland, is the director of the John E. Moss Foundation and has authored People's Warrior: John Moss and the Fight for Freedom of Information and Consumer Rights, which documents the tenacious 12-year fight to enact the Freedom of information Act. 

Event details are available here.

Q&A: Jailhouse blues in the Constitution State

Q.  Is it possible to obtain video footage of a person who was arrested while they were in the holding cell?  My fiancé was arrested in Connecticut and abused by several officers during the booking process and while he was in the cell. 

A.  The following guidance from Connecticut's Freedom of Information Commission might be instructive:

To obtain records from a public agency in Connecticut, you must request them from the agency that has those records. You have the right to view public records without obtaining a copy, as well as the right to obtain copies.  The agency may ask you to put your request in writing, regardless of whether you wish to inspect or receive copies.  There is no universal form for making a records request in Connecticut, although some agencies have created one for their own use. Simply articulate what records you seek as succinctly and specifically as possible. Make sure the request is made directly to the department in the agency that has the records. Municipal agencies may charge a maximum of $.50 per page, and state agencies may charge a maximum of $.25 per page. Other fees may be charged for certified copies of public records or for transcriptions, printouts or records on electronic media.

FOIA News: Senate keeps CFTC in check

Grassley Wins Fight for Transparency in CFTC Reauthorization

By A.J. Taylor, KIOW Radio, Apr. 17, 2016

During consideration yesterday of the reauthorization of the Commodity Futures Trading Commission (CFTC), Senator Chuck Grassley fought to ensure that data compiled by the commission remained subject to the Freedom of Information Act (FOIA) while maintaining adequate protections currently in place.  An amendment he introduced with Senator Patrick Leahy was included in the reauthorization bill.  The amendment prevented the CFTC’s FOIA exemptions from going beyond what is necessary, since FOIA already protects against the release of trade secrets and certain commercial or financial information.

“FOIA was enacted to increase government transparency.  And transparency yields accountability,” Grassley said.  “FOIA already strikes a proper balance between the public’s right to know and the government’s need to protect certain information.  But special interests wanted to give the CFTC additional, nearly carte blanche authority to fully exempt certain information from public accountability through FOIA.  That was unacceptable to Senator Leahy and me.  We appreciate Chairman Roberts including our amendment.”

The Judiciary Committee, where Grassley and Leahy are the Chairman and Ranking Member respectively, has jurisdiction over the Freedom of Information Act.  Last year under Grassley’s leadership, the committee passed the FOIA Improvement Act which requires the government to adopt a “presumption of openness” when processing requests for government records via the Freedom of Information Act.  The bill recently cleared the Senate, but is awaiting action by the House of Representatives.

Q&A: Californication

Q.  How can the county-level courts in California charge fees to look at court records online?  Does this not conflict with the Freedom of Information Act and impede low income people from being unable to readily access these records?

A.  The California court system is not subject to the California Public Records Act or to the federal Freedom of Information Act, which is limited to executive branch agencies.  Fee waivers are available to California litigants under certain circumstances, as explained in the following guidance.

FOIA News: Bill Aims to Rein in National Security Council

Bill Aims to Rein in National Security Council

By Marcie Shields, Courthouse News Service, Apr. 15, 2016

Indiana congresswoman Jackie Walorski proposed new legislation that, if passed, will bring the U.S. National Security Council back under the Freedom of Information Act.

Walorski drafted H.R. 4922, also known as the Transparency in National Security Act, in response to rising concerns about the National Security Council's exponential growth and expanding role, as well as the widening scope of its decision-making power.

Established by the National Security Act of 1947, the NSC is "mandated by statute to advise the president with respect to the integration of domestic, foreign, and military policies relating to the national security and to perform such other functions as the president may direct," according to Walorski's bill.

Read more here.

FOIA News: Las Vegas Review-Journal Editorial in Favor of FOIA Reform

The federal government conducts the public’s business, and as such, the public should have access to government work. FOIA is a check on corruption, waste and government wrongdoing. Without responsiveness and transparency, there can be no accountability.

FOIA is in need of reform. Federal records must be presumed open and the Office of Government Information Services — created to improve the FOIA process — must empower its ombudsman to ensure timely compliance. Federal agencies should face consequences for ignoring or refusing to honor FOIA requests — especially if those seeking the records have to go to court to obtain them.

Read more here.

Court opinion issued Apr. 13, 2016

Buckovetz v. U.S. Dep't of the Navy (S.D. Cal.) -- denying government's summary judgment motion concerning records of a sexual harassment complaint maintained by U.S. Marine Corps.  The court held that the government had failed to demonstrate that it conducted an adequate search, noting that the government did not even address plaintiff's argument that an additional office would likely maintain records.  With respect to withholdings that the agency made pursuant to Exemptions 6 and 7(C), the court found that the agency declaration was "vague and conclusory" and that the Vaughn Index was "largely inadequate." Similarly, the court observed that the Vaughn Index did not address a single document withheld, in full or in part, under Exemption 5, and that the agency declaration failed to describe the requested documents in detail. 

Summaries of all opinions issued since April 2015 available here.

Court opinions issued Apr. 12, 2016

Benjamin v. U.S. Dep't of State (D.D.C.) -- determining that the agency properly relied upon Exemption 1 to withhold certain information from documents relating to the U.S. government's role in a June 1957 coup d'état in Haiti.

Robinson v. Drug Enforcement Agency (S.D. Miss.) -- dismissing lawsuit because plaintiff, a federal inmate, had knowingly and voluntarily waived his right to request his criminal case records as part of plea agreement.  

Summaries of all opinions issued since April 2015 available here.

FOIA News: House bill seeks to restore National Security Council to FOIA's orbit

Bill would make National Security Council subject to FOIA again

By Josh Gerstein, Politico, Apr. 13, 2016

Legislation introduced Wednesday in the House would allow the public to request National Security Council records under the Freedom of Information Act, restoring the status quo that existed until a court ruling two decades ago effectively put the council beyond the reach of the federal government's pre-eminent transparency law.

Rep. Jackie Walorski (R-Ind.) filed the bill, citing reports of major growth in the National Security Council's size, as well as accusations from former officials that the National Security Council micromanaged military commanders in the field. In recent years, such complaints have been aired publicly by former Defense secretaries Bob Gates, Chuck Hagel and Leon Panetta. The trio's objections were also prominently featured in a Fox News special broadcast earlier this month.

"The increasing micromanagement from the White House directly reduces the amount of oversight that Congress can have and undermines the authority of the Department of Defense,” said Walorski, a member of the House Armed Services Committee. “This legislation is critical for this and future administrations and serves as a public reminder that presidents cannot avoid public scrutiny or accountability by consolidating authority in the White House.”

Read more here.
 

Court opinion issued Apr. 11, 2016

Animal Legal Def. Fund v. Food & Drug Admin. (9th Cir.) -- affirming district court's decision that the FDA properly invoked Exemption 4 to protect certain commercial information pertaining to egg-production farms in Texas.  In a per curiam concurring opinion, however, the panel recommended that the Ninth Circuit reconsider its use of a deferential standard of review "in cases such as this one -- where the factual inquiry on which the summary judgment turns is one that does not depend on a review of withheld information."  

Summaries of all opinions issued since April 2015 available here.