Q&A: A Blue Ridge mountain of fees?

Q.  Can our West Virginia county charge a fee for the time it takes to gather the information in a FOIA request, as well as a fee for printing the materials?

A.    Section 29B-1-3(e) of the West Virginia Freedom of Information Act provides that a public body "may establish fees reasonably calculated to reimburse it for its actual cost in making reproductions of records.  A public body may not charge a search or retrieval fee or otherwise seek reimbursement based on a man-hour basis as part of costs associated with making reproduction of records."

Court opinion issued Apr. 15, 2016

Freedom Watch v. U.S. Dep't of State (D.D.C.) -- on remand from the D.C. Circuit, ruling that the State Department conducted an adequate search of Hillary Clinton's emails for documents relating to a type of sanctions waiver the U.S. State Department granted to certain countries doing business with Iran.  The court pointed out that plaintiff's arguments in opposition to the agency's search had been raised and rejected in earlier briefing, prompting the court to criticize plaintiff for ignoring its prior opinion and for submitting "sloppy work."  

Summaries of all opinions issued since April 2015 available here. 

FOIA News: Obama’s Secrecy Problem

Obama’s Secrecy Problem

By Fred Kaplan, Slate, Apr. 15, 2016

When FOIA was passed in 1967—and strengthened in 1974—the law’s language required agencies to respond to requests for information within 10 business days. This was always a preposterous standard, and so the rule was extended to two months, which was also stretched, understandably so. But now the FOIA offices move at a snail’s pace, with requests routinely taking many months—and often a couple years—to process. (Requests for Mandatory Declassification Reviews, another method of unlocking data, take on average 224 days; when the requests are denied, appeals take, on average, another 296 days.)

To some degree, this is because of the crushing caseload in FOIA offices. Since Obama’s first year as president, annual requests for information have risen by 45 percent—from 500,000 to 715,000. Had Obama made FOIA the high priority that he signaled on his first day as president, he could have requested money to hire more FOIA personnel. Yet over this same period, the level of personnel has risen by only 3 percent, from 4,000 to 4,121. No wonder, then, that the backlog of cases has also swelled by 45 percent—from 70,777 to 102,828.

But the growing caseload isn’t the only reason for the slowdown. If the agencies had taken Obama’s 2009 memo seriously, they could have dealt with the burden by adopting a presumption to disclose. But they haven’t. In fact, agencies have grown more hostile to FOIA and they’ve been egged on in their resistance by the Department of Justice. In 2014, Congress was about to enact reforms that would have required agencies to loosen their strictures, but the Justice Department’s Office of Information Policy lobbied against the measures. Anne Weismann, a former Justice Department official, now at the nonprofit Campaign for Accountability, told me, “OIP sees their role as protecting agencies from intrusion.” Internal memoranda that Vice senior investigative reporter and information activist Jason Leopold obtained, ironically, under the Freedom of Information Act, confirmed the claim.

Read more here.

FOIA News: US refuses to release records on Chinese companies linked to deadly fentanyl trade

US refuses to release records on Chinese companies linked to deadly fentanyl trade

By David Armstrong, STAT, Apr. 18, 2016

US customs officials are refusing to release records related to two Chinese companies linked to an explosion of fentanyl overdoses unless the companies give their permission — a stance called astonishing by an expert on public records.

STAT requested US government records related to the companies through a Freedom of Information Act request earlier this month. The information sought included any records documenting violations of US law by the companies; sanctions or restrictions placed on the companies; reports detailing products exported to the United States by the companies; and any investigative reports.

In response, the US Customs and Border Protection agency instructed STAT to resubmit its request with statements from the companies “authorizing that their information may be accessed, analyzed, and released to a third party.”

Read more here.

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.