FOIA News: Summary and Assessment of Agency 2016 Chief FOIA Officer Reports Issued

Summary and Assessment of Agency 2016 Chief FOIA Officer Reports Issued

Department of Justice Office of Information Policy, May 9, 2016

This past March marked the seventh year that agency Chief FOIA Officers submitted to the Department of Justice their Chief FOIA Officer Reports detailing all the steps their agencies have taken to embrace the President's and the Department of Justice's 2009 FOIA Memoranda. These Chief FOIA Officer Reports have served as a valuable resource for agencies to describe the various initiatives undertaken to improve their administration of the FOIA. With the completion of agencies’ 2016 Chief FOIA Officer Reports this past Sunshine Week, today OIP releases its summary and assessment of these reports and the progress made in implementing the Department of Justice's 2009 FOIA Guidelines.

Read more here.

Q&A: If they build it . . .

Q.  Can I request a copy of the construction plans and specifications for a project that is currently underway on federal land even though they were prepared by a private firm?

A.  If the construction project is a nuclear power plant or a prison, probably not.  In addition to security issues that might prevent release, the records you seek might contain sensitive business information whose release could harm the competitive interests of the private firm.  If so, the federal agency that possesses the records would need to notify the private firm of your request and to provide it with an opportunity to object to disclosure.  This so-called "submitter notice" process is set forth in a Presidential Executive Order that was issued in 1987.    

FOIA News: OGIS Director Resigns After 9 Months; Returning to DHS

Sources: Obama transparency official stepping down

By Josh Gerstein, Politico, May 6, 2016

An official tasked with improving the operation of the Freedom of Information Act across the Obama Administration is resigning after less than a year on the job, several sources briefed on the move told POLITICO.

James Holzer took over last August as director of the Office of Government Information Services, which serves as an ombudsman between federal agencies and FOIA requesters. The office also conducts audits of agencies' FOIA operations and proposes ways to streamline those processes.

Two sources said Holzer is returning to a position at the Department of Homeland Security, where he worked before joining OGIS, a part of the National Archives.

Holzer was not immediately available for an interview. An Archives spokeswoman declined to comment, citing a policy of not discussing personnel issues.

The official's departure caught several close observers of transparency issues by surprise.

"It’s difficult to imagine that he wasn’t asked for at least one-year commitment in order to take such a position so it's remarkable his tenure lasted no more than nine months," said Dan Metcalfe, director of the Collaboration on Government Secrecy at American University's law school.

Read more here. 

Court opinion issued May 4, 2016

Rogers v. Internal Revenue Serv. (6th Cir.) -- affirming district court's decision that plaintiff was precluded from maintaining a FOIA action due to a "release clause" contained in previously executed settlement agreement with the IRS.  A dissenting opinion asserted that the FOIA action should not have been dismissed, because the IRS failed to raise the release clause as a defense until it filed a summary judgment motion one year after the lawsuit began.   

Summaries of all opinions issued since April 2015 available here. 

Q&A: Better Call NARA

Q.  Can I request employment records and/or the reason an employee was terminated for an employee that worked 20-25 years ago for the U.S. Department of Energy in New Mexico?

A.  The personnel records of former federal civilian employees are maintained at the National Personnel Records Center (NPRC), which is a component of the National Archives and Records Administration (NARA).  Here are the instructions for making a Freedom of Information Act (FOIA) request for such records.  Keep in mind that NARA may withhold information if it falls within one of nine FOIA exemptions, notably Exemption 6, which pertains to personal privacy (e.g., date of birth SSN, medical & insurance information, etc.).  The reason for an employee's separation might also be protected by Exemption 6, depending upon the circumstances. 

FOIA News: Office of Special Counsel proposes amendments to FOIA regs

The Office of Special Counsel is seeking public comments on a proposed rule that would revise the methods by which requesters may submit FOIA requests and appeals, and that would modify the manner by which requests qualify for expedited processing.  The deadline to submit comments is July 5, 2016. 

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.