Competitive Enter. Inst. v. Office of Sci. & Tech. Policy (D.D.C.) -- granting plaintiff limited discovery concerning the agency's search because the court found the agency's representations about the scope and completeness of the search to be "inaccurate time and again."
See also news article by FedSmith.
Summaries of all opinions issued since April 2015 available here.
By Susan McGuire Smith, FedSmith, May 10, 2016
The U.S. District Court in D.C. has ordered that the Office of Science and Technology Policy be subjected to discovery in a Freedom of Information Act (FOIA) case, a once in a blue moon type of event. (Competitive Enterprise Institute v. Office of Science and Technology Policy (U.S. District Court D.C. Civil No. 14-cv-01806 (APM), 5/9/16)
Pointing out that “discovery is rare” in FOIA cases, the district court goes on to outline the agency’s actions leading to its conclusion that “as it turns out, this is the rare case where discovery is warranted.” (Opinion p. 1)
The Competitive Enterprise Institute asked for documents relating to a posting on the White House website indicating a connection between “the ‘polar vortex’ and global warming.” ( p. 2) The agency in effect slow walked the identification of documents responsive to the CEI request.
In its initial response, it was only able to come up with eleven pages of records that it felt were responsive to the request. Only after the group filed an appeal did the agency look again and found 47 pages of the draft OSTP letter that the request had specifically identify. The agency cited Exemption 5 (internal agency predecisional documents) to justify withholding these additional pages. CEI sued to compel release and in its initial decision the court pointed out that the agency affidavits “left ‘two distinct impressions: (1) that there were only 47 draft pages of the OSTP Letter and (2) that only Executive Branch officials had reviewed the draft pages.’”
Read more here.
Cause of Action Institute Sues to Stop White House Obstruction of the Freedom of Information Act
Cause of Action Institute, May 9, 2016
Today, Cause of Action Institute (CoA Institute) filed a lawsuit against 11 federal agencies — plus the Office of the White House Counsel (OWHC) and White House Counsel Neil Eggleston — to end the Obama administration’s practice of delaying government responses to Freedom of Information Act (FOIA) requests that the administration considers politically sensitive or embarrassing.
When members of the public request documents from federal agencies, FOIA requires that agencies process the request in accordance with specific deadlines. Agencies must search for responsive documents and produce them unless the information they contain falls into a specific statutory exception.
The Obama administration, however, has interfered in the FOIA process in ways that violate the statute and hinder its purpose of federal transparency. Although President Obama came into office with promises of transparency, his administration’s actions have not matched such rhetoric. Under a non-public 2009 memorandum, federal agencies must consult with OWHC before producing documents that involve “White House equities.”
Read more here.
Complaint here.
How the ‘Acid King’ Won a Lawsuit Against the US Government
By CJ Ciaramella, Vice, May 9, 2016
William Leonard Pickard was sentenced to life without parole in 2003 for manufacturing massive amounts of acid at a decommissioned nuclear missile silo. But last week, Pickard—one of the biggest LSD manufacturers in American history—won a decade-long lawsuit against the Drug Enforcement Administration (DEA) for records on the confidential informant that helped put him behind bars.
Pickard, now 70, filed the Freedom of Information Act (FOIA) lawsuit in 2006. The suit plodded along for ten years in an epic case of government foot-dragging and stonewalling, according to his current lawyer, Mark Rumold, a staff attorney with the Electronic Frontier Foundation. Rumold is representing Pickard pro bono—and not as part of his day job—and the way he sees it, Pickard's case represents "absolute government and DEA obstinance."
"I've done a lot of FOIA litigation, and I've never encountered something like this," Rumold tells me.
Read more here.
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. 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.
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.
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. 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.
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.