Am. Civil Liberties Union v. CIA (D.C. Cir.) -- unanimously affirming district court's decision that a report authored by the Senate Select Committee on Intelligence on a program of detention and interrogation formerly run by the CIA was a congressional record, not an agency record subject to FOIA.
See Politico article here.
Summaries of all opinions issued since April 2015 available here.
Q. Am I allowed to obtain copy of anyone's U.S. federal income tax return?
A. No. As a general rule, such information is considered confidential under section 6103 of the Internal Revenue Code.
By Josh Gerstein, Politico, May 13, 2016
A federal appeals court has upheld a lower court ruling that the Obama administration need not release the unabridged version of a Senate Intelligence Committee report that sharply criticized the Central Intelligence Agency’s treatment of terror suspects aggressively interrogated in the years after the September 11, 2001 attacks.
A unanimous three-judge panel of the D.C. Circuit Court of Appeals ruled Friday that the Senate had not relinquished control over the report when it sent copies of the document to various executive branch agencies, like the CIA and the Justice Department. Therefore, those agencies were under no obligation to fulfill Freedom of Information Act requests for the full report, Judge Harry Edwards wrote on behalf of Judges David Tatel and Sri Srinivasan.
“On the record before us, the Senate Committee’s intent to retain control of the Full Report is clear. The Full Report therefore remains a congressional document that is not subject to disclosure under FOIA,” Edwards wrote.
The appeals court’s decision also called “eminently well-reasoned” a lower court’s opinion holding that the full report was still essentially a legislative record and not an agency record that can be requested under FOIA.
Read more here.
Johnson v. Fed. Bureau of Investigation (E.D. Pa.) -- ordering FBI to disclose its investigatory file of a death row inmate to plaintiff's counsel, because the agency failed to demonstrate that all responsive records were necessarily covered by Exemption 7(A); further ordering plaintiff's attorney to propose to court which documents it wished to share with others, including plaintiff, an investigator whose office represented death row inmate.
Summaries of all opinions issued since April 2015 available here.
In 2010, you became CFPB’s first FOIA manager. Where did you get your start with the FOIA and how did you end up at CFPB?
My introduction to FOIA was during my tenure with the Air Force Office of Special Investigations in the late 1990s. Following my separation from the Air Force, I was a contractor providing technology support to the Army Intelligence and Security Command’s FOIA/Privacy Office and Investigative Records Repository. After five years, I accepted the opportunity to lead that office before ending up at the CFPB as its first FOIA Manager.
What were some of your biggest challenges at CFPB in 2010?
Naturally, there are countless challenges with establishing a new organization. When I think back to late 2010, I remember focusing on those tasks that must be accomplished (like regulations and policies) but spent a lot of time on building a successful organizational culture around FOIA. One of the biggest challenges was implementing technology in every aspect of FOIA operations including tracking every aspect of the request to create an all-inclusive administrative record, digitizing and redacting all forms of documents, electronically responding to all requests (unless otherwise stated by requester), and the integrating of an eDiscovery solution to search emails and network drives for responsive records. Another significant challenge was building a culture around FOIA, which included gaining the support of leadership and establishing methods to continually educate employees on FOIA.
How have CFPB’s FOIA operations changed since 2010?
I would say that the FOIA program has matured over the last five years. For example, we started tracking requests with a spreadsheet and now have a robust application that handles every aspect of a request.
What is the most unusual FOIA request you have ever worked on? The most interesting request?
I have always found the requests that involve a perceived conspiracy particularly interesting, from the point of view of what the public thinks the government is up to behind the scenes. For example, requests that involve UFOs. Likewise, my most interesting requests came when I supported the federal law enforcement and the intelligence communities.
In late 2015, you left your position as FOIA manager to become CFPB’s Deputy Chief Administrative Officer. What are some of your current duties?
In general, I develop and implement a variety of strategies to support the Facilities, Security, Library, Records Management, and FOIA programs. Additionally, I work on a multitude of operational matters across the CFPB.
What do you miss and not miss about being a full-time FOIA practitioner?
Ironically, I miss the interaction with the public. However, I do appreciate not hearing complaints about processing requests from the public any longer. Sorry, I am being honest!
Will you stay involved with FOIA at CFPB or in your personal capacity?
Yes. In my new position at the CFPB, I am still involved with FOIA.
What will you remember the most about your time as FOIA manager at CFPB? What accomplishments as CFPB’s FOIA manager are you most proud of?
It was very rewarding to have the opportunity to be one of the first 100 employees at a new startup. I was blessed with the chance to develop every aspect of a FOIA operation from scratch, as well as a culture around transparency.
Getting a little more personal, where were you born/grow up?
Johnstown, Pennsylvania, which is the home of the 1889 flood, steel mills, coal mines, and the steepest vehicular inclined plane in the world.
Where did you go to school and what did you study?
I attended a vocational technical high school and majored in computer programming (the old stuff like COBOL, Fortran, RPG). While in the Air Force, I graduated from the College of Southern Maryland with an AAS in Information Services Technology and the Community College of the Air Force with an AAS in Information Management. Lastly, I earned a BS degree in Information Systems Management and a MS in Management (minor in Homeland Security) from the University of Maryland University College.
What was your first job ever? What did you like or not like about it?
I grew up on a farm and loved it! It gave me the foundation for a good work ethic, but I think it contributed to the allergies I have now!
What do you like to do in your spare time?
Well, I have two young kids under 5 years old, so I have no spare time!
If you could meet any historical icon, of the past or present, who would it be and why?
Probably Ronald Reagan because he was such a diplomat throughout the world and cared deeply for his family.
Name a favorite book, television series, and movie
I do not like to read, but I do read the Bible quite a bit. Favorite television series is definitely Law & Order, and favorite movie is probably Heartbreak Ridge with Clint Eastwood.
What was your most memorable travel experience?
Unfortunately, I do not travel very much. However, I have a lot of good and bad memories from my (official) travel to Saudi Arabia to support Operation Southern Watch.
Raimondo v. Fed. Bureau of Investigation (N.D. Cal.) -- ruling that the FBI failed to sufficiently demonstrate how the records it maintained on an anti-war website met the law enforcement threshold for purposes of Exemption 7, or -- even if they met that threshold -- how they were exempt under Exemptions 7(C) or 7(E).
Summaries of all opinions issued since April 2015 available here.
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.