FOIA News: Court approves depositions of former Hillary Clinton aides

Judge OKs deposition plan in Hillary Clinton email case

A federal judge has approved a plan to take sworn testimony from former aides to Hillary Clinton about her use of a private e-mail server during her tenure as secretary of state.

U.S. District Court Judge Emmet Sullivan issued an order Wednesday approving the discovery plan, which was agreed to by the State Department and a conservative group that demanded Clinton's emails under the Freedom of Information Act, Judicial Watch.

"The circumstances surrounding approval of Mrs. Clinton’s use of clintonemail.com for official government business, as well as the manner in which it was operated, are issues that need to be explored in discovery to enable the Court to resolve, as a matter of law, the adequacy of the State Department’s search of relevant records in response to Judicial Watch’s FOIA request," Sullivan wrote in his 15-page order.

Sullivan's order explicitly left open the question of whether Clinton should be subject to a deposition about the private email arrangement. The order calls for depositions over the next eight weeks of former Clinton Chief of Staff Cheryl Mills, Deputy Chief of Staff Huma Abedin and information technology specialist Bryan Pagliano. Also slated to be deposed under the plan are Undersecretary of State for Management Patrick Kennedy, former Executive Secretary Stephen Mull, former Executive Secretariat Executive Director Lewis Lukens.

Read more here.

FOIA News: OGIS revisits "still-interested" letters

Further Findings on the Use of “Still Interested” Letters

OGIS Blog, May 4, 2016

As we reported last week, data on the historical use of “still interested” letters cannot capture the full effect that the letters have on FOIA requesters but show that agencies close very few requests using these letters.  For Part 2 of our review of still interested letters, we followed up with seven FOIA programs to learn more about how these letters were used.

*  *   * 

Part 2 of our assessment used data from agencies’ Fiscal Year (FY) 2014 Annual FOIA Reports to identify the FOIA programs in which the actual or apparent use of still interested letters might have the greatest effect on requesters. To ensure that we captured all requests that might have been closed using still interested letters, we reviewed data on all administrative closures described in a way that might be connected to still interested letters plus all requests reported as withdrawn. At the seven FOIA programs we identified, we asked a series of questions about their use of still interested letters, and how they report them.

Similar to our results from Part 1, we found that despite the fact that we targeted FOIA programs whose use of still interested letters might have the greatest effect on requesters and that we included requests that were likely not closed using still interested letters in our data, the FOIA programs we reviewed closed relatively few requests possibly using these letters. Of the 46,019 requests the FOIA programs we reviewed processed in FY 2014, about 5.5 percent (2,535 requests) were closed using a method that might be related to a still interested letter.

Read more here.  

Advice from Poynter: Running into a brick wall with your FOIA request? Take it public

Running into a brick wall with your FOIA request? Take it public

By Kelly Hinchcliffe, Poynter, May 4, 2016

When I’m having trouble getting public records from a government agency, I’ll often turn to my colleagues for advice or just to vent. But sometimes, you need to take your struggle public.

That’s what New York City reporter Joaquin Sapien did last month. After spending nearly a year trying to get records from the city and exchanging more than 50 emails with a freedom of information officer, he finally had enough.

On April 21, he posted a story on ProPublica with a headline that captured his frustration: “Foiled by FOIL: How One City Agency Has Dragged Out a Request for Public Records for Nearly a Year.”

Sapien allowed readers to experience his frustration by including screenshots of emails he exchanged with the freedom of information officer, showing that she promised to deliver the records eight different times. Each time the promised delivery date rolled around, she had a new excuse and a new date that the records would be ready.

Read more here.

Court opinion issued May 2, 2016

Pickard v. Dep't of Justice (N.D. Cal.) -- ordering the Drug Enforcement Administration to release three categories of information about a confidential informant who testified against plaintiff, because the magistrate judge found that the DEA did not provide reasons for nondisclosure that were sufficiently tailored to the case.    

Summaries of all opinions issued since April 2015 available here. 

FOIA News: FOIA Food Fight

Where's the Beef? You Won't be Able to Find out if Agricultural Groups Get Their Way

Beef, egg, and milk producers behind campaigns like “Got Milk” want to be exempt from FOIA requests

By Beth Kowitt, Fortune, May 2, 2016

A number of prominent agricultural commodity groups have successfully pushed for language to be included in the pending 2017 House Agricultural Appropriations Bill that “urges” the U.S. Department of Agriculture to exempt their respective promotional groups from Freedom of Information Act (FOIA) requests, which make otherwise-private government records available to the media and other organizations.

These promotional and research boards, funded by agricultural producers, market their commodities, in some cases with memorable slogans (think “Got Milk” or “The Other White Meat”). The USDA’s Agricultural Marketing Service oversees these programs, which are known as “checkoff programs” because fees to pay for them are automatically assessed to every producer.

The language in the bill, which is awaiting action by the House, makes the case that the research and promotion boards are neither agencies of the federal government nor funded by federal funds and therefore should not be subject to FOIA requests.

On April 11, 14 commodity groups—including the American Beekeeping Federation, the American Mushroom Institute, the National Cattlemen’s Beef Association, the National Christmas Tree Association, the National Milk Producers Federation, the National Pork Producers Council, the National Potato Council, the National Watermelon Association, and United Egg Producers—wrote a letter to the heads of the House’s subcommittee on agriculture pushing for the change.

The commodity groups argue in the letter, which was obtained by Fortune, that since they reimburse the USDA for costs related to USDA’s oversight, including FOIA requests, the change would “help ensure that producer resources are focused on research and promotion activities.”

Read more here.  

Q&A: Retaining FOIA files in Michigan

Q.  How long does a [Michigan] township need to retain FOIA documents?  

A.  The retention of Michigan records is governed by approved schedules issued by the Department of Technology, Management and Budget (DTMB).  State government agencies are required to maintain a FOIA file for one year after its creation.  See General Schedule #5.06.  The General Schedule #10 for Michigan Townships does not appear to include an agency-wide retention period for all FOIA files.  The retention schedule for FOIA files for Township Clerks and Township Treasurers, however, are both one year from date of creation.  Therefore, I suspect that the same period is likely to apply to your agency.  To confirm, I recommend that you contact DTMB's Records Management Services at (517) 335-9132.  

FOIA News: Congress asks GAO to conduct FOIA inquiry

Congress requests GAO investigation into federal FOIA shortcomings

By Alex Howard, Sunlight Foundation, Apr. 29, 2016

On April 28, the leaders of the U.S. House Committee on Oversight and Government Reform and the U.S. Senate Committee on the Judiciary sent Gene L. Dodaro, the U.S. comptroller general, a letterrequesting the General Accountability Office (GAO) conduct a comprehensive review of the federal government's compliance with the Freedom of Information Act.

The Freedom of Information Act (FOIA) is a vital tool that protects one of the cornerstones of our Nation: the American public's right to know what its government is up to. Given FOIA's importance, effective and complete implementation of its statutory requirements is necessary to ensure that the public can exercise its right to know.

Requesters repeatedly report to Congress the problems they have encountered with the FOIA process. These problems include indefinite delays, excessive redactions, and other unnecessary barriers to accessing information. According to a recent report, people who sought records under FOIA in Fiscal Year 2015 received censored files or simply nothing at all in response to 77 percent of all requests—a record high, according to the Associated Press. During the same period, the number of FOIA lawsuits filed in federal court reached an all-time high. These are troubling statistics that warrant further investigation into how, and the extent to which, the federal government responds to FOIA requests.

The authors of the letter — Reps. Jason Chaffetz, Elijah Cummings and Darrell Issa along with Sens. Charles Grassley, Patrick Leahy and John Cornyn — requested that the GAO produce reports on the following topics:

Read more here.

Court opinion issued April 27, 2016

Airaj v. U.S. Dep't of State (D.D.C.) -- ruling that the agency conducted a reasonable search for records pertaining to plaintiff's application for a special immigration visa, and that it properly withheld certain records pursuant to Exemption 3 (in conjunction with the Immigration Nationality Act) and Exemptions 6 and 7(C).   

Summaries of all opinions issued since April 2015 available here. 

FOIA News: OGIS addresses "still-interested" letters

FOIA 'still interested letters' have uncertain effect on requesters, report finds

By Stephanie Kanowitz, FierceGovernmentIT, Apr. 28, 2016

Sending a so-called "still interested letter" to someone who requested responses under the Freedom of Information Act, or FOIA, has an uncertain effect, an analysis found.

It's tough to measure these letters' effect on requesters, found part 1 of a study (pdf) by the Compliance Team at the Office of Government Information Services, or OGIS, on the use of such letters by the 15 Cabinet-level agencies between fiscal years 1998 and 2014, according to an April 27 blog post by the National Archives' FOIA ombudsman.

That's due, in part, to the fact that no guidance or standard for reporting requests closed using the letters exist.

"'Still interested' correspondence is a letter or an email that an agency sends to a FOIA requester asking if the requester remains interested in the requested records despite the time that elapsed since the request was filed," according to the report. "These letters are generally sent to the requester a significant amount of time after the FOIA request is made and inform the requester that if he or she does not indicate interest within a certain time, the agency will not process the request and will administratively close it."

Sometimes this letter is the first communication that an agency has with a requester, according to the report. "These letters can give the appearance to requesters – particularly frequent savvy requesters – that an agency's FOIA process does not work," it added.

Read more here.

Court opinion issued Apr. 26, 2016

Bagwell v. U.S. Dep't of Educ. (D.D.C.) -- ruling that agency properly withheld certain compliance records and correspondence pertaining to Penn State University pursuant to Exemptions 6, 7(C), 7(E), and 3 (in conjunction with the Higher Education Act of 1965, 20 U.S.C. § 1099c-l).  

Summaries of all opinions issued since April 2015 available here.