Court opinions issued May 25, 2016

Shapiro v. U.S. Dep't of Justice (D.D.C.) -- granting in part and denying part FBI's motion to reconsider court's April 8, 2016 opinion that permitted agency to raise certain -- but not all -- exemptions for first time in litigation.  In reaching its decision, the court held that D.C. Circuit's case law does not permit the government to advance new FOIA exemptions absent a showing of good cause,

Nat'l Sec. Counselors v. Cent. Intelligence Agency (D.D.C.) -- awarding plaintiff $55,050 for attorney fees and $505 in costs for partially prevailing in FOIA litigation; reducing amount of fees requested by 40 percent (from $91,750), because (1) the fee request included unsuccessful claims, (2) the billing records were not contemporaneous, lacked details, and included duplicative work, and (3) the hourly rates were excessive.    

Daniels v. Soc. Sec. Admin. (9th Cir.) -- affirming district court's decision that agency provided appellant with all responsive records to which he was entitled under the Privacy Act and FOIA; rejecting appellant's argument that agency was required to cite Privacy Act exemptions in order to withhold documents not contained in a "system of records."  

Summaries of all opinions issued since April 2015 available here.

FOIA News: State Dept. Releases Donor List for 'Patrons of Diplomacy'

Revealed: The State Department’s Hidden Hillary Donors

By Shane Harris and Jackie Kucinich, The Daily Beast, May 26, 2016

More than a dozen donors to Clinton’s non-profit foundation and her various political campaigns poured money into an endowment she launched into 2010 to pay for the upkeep of the Diplomatic Reception Rooms. The 42 sumptuous salons at State Department headquarters in Washington, decorated with 18th and 19th century American furnishings, are used to welcome foreign dignitaries, conduct diplomatic meetings and swearing-in ceremonies, and host official dinners.

By the following year, the campaign had raised more than $20 million to permanently fund restoration and maintenance for the rooms and their collections of rare American artwork, thanks largely to reliable Clinton donors.

Nearly half of the 37 people and organizations who donated to the State Department campaign, known as Patrons of Diplomacy, also gave money to the Clinton Foundation, according to State Department and foundation records. Of the eleven people who served as co-chairs for the campaign, agreeing to contribute their own money or to help raise funds from others, six also gave to the Clinton Foundation, a global charity started by former President Bill Clinton.

Until this week the State Department seemed inclined to keep the names of these patrons private. When The Daily Beast initially asked to see the donor list, a department spokesperson said that it was already the subject of a Freedom of Information Act lawsuit by the Republican National Committee, and therefore couldn’t yet be released. (The RNC has filed six lawsuits against the State Department related to Clinton’s tenure, focused on potential conflicts of interest with her and her aides’ work for the foundation, as well as her use of a private email server for official business.)

But if the State Department wanted to keep the donors from public scrutiny, it’s not clear why their names are inscribed on a wall, located on a terrace off one of the reception rooms, with a sweeping view of the National Mall.

Read more here.

FOIA News: Hillary Clinton aide moves to block release of deposition video

Hillary Clinton aide moves to block release of deposition video

By Josh Gerstein, Politico, May 25, 2016

Hillary Clinton's former chief of staff, Cheryl Mills, is asking a federal judge to order a conservative group not to release audio or video recordings of a deposition Mills is scheduled to give Friday about Clinton's use of a private email server during her tenure as secretary of state.

Mills' attorneys filed a motion Wednesday afternoon saying they fear that the group that sought Mills deposition in a Freedom of Information Act lawsuit, Judicial Watch, will use any recording to distort Mills testimony and advance the group's anti-Clinton agenda.

"We are concerned that snippets or soundbites of the deposition may be publicized in a way that exploits Ms. Mills’ image and voice in an unfair and misleading manner," attorneys Beth Wilkinson and Alexandra Walsh wrote in the motion submitted to U.S. District Court Judge Emmet Sullivan. "Ms. Mills is not a party to this action. She is a private citizen appearing voluntarily to assist in providing the limited discovery the Court has permitted... Judicial Watch should not be allowed to manipulate Ms. Mills’ testimony, and invade her personal privacy, to advance a partisan agenda that should have nothing to do with this litigation."

Read more here.

FOIA News: State Dept. IG says Clinton Violated Email Rules

State Dept. watchdog: Clinton violated email rules

By Rachael Bade, Josh Gerstein and Nick Gass, Politico, May 25, 2016

The State Department inspector general concluded that Hillary Clinton did not comply with the agency’s policies on records, according to a report released to lawmakers on Wednesday that also revealed that Clinton and her top aides chose not to cooperate with the review.

The agency on Wednesday released the long-awaited report to Capitol Hill, copy of which was obtained by POLITICO, providing just the latest turn in the headache-inducing saga that has dogged Clinton's campaign.

While the report concludes that the agency suffers from "longstanding, systemic weaknesses" with records that "go well beyond the tenure of any one Secretary of State,” it specifically dings Clinton for her exclusive use of private email.

“Therefore, Secretary Clinton should have preserved any Federal records she created and received on her personal account by printing and filing those records with the related files in the Office of the Secretary,” the report states. “At a minimum, Secretary Clinton should have surrendered all emails dealing with Department business before leaving government service and, because she did not do so, she did not comply with the Department’s policies that were implemented in accordance with the Federal Records Act."

Read more here.

Court opinion issued May 24, 2016

Rosiere v. United States (10th Cir.) -- affirming district court's dismissal of plaintiff's FOIA lawsuit in Colorado because plaintiff filed lawsuits in Nevada and New Jersey seeking identical documents.  The Tenth Circuit rejected plaintiff's argument that section 552(7)(A) permits a requester to sue for identical FOIA requests in two separate courts so long as each FOIA request is made on a separate date and assigned an individualized tracking number. 

Summaries of all opinions issued since April 2015 available here. 

FOIA News: Cause of Action Institute Files Complaint Against IRS for Destroying Records

The Cause of Action Institute (CoA Institute) today filed a legal complaint against the Internal Revenue Service (IRS) and its commissioner, John Koskinen, for refusing to capture and preserve electronic communications of employees that deal with official business, as required by the law.

CoA Institute President & CEO Alfred J. Lechner, Jr.: “The IRS and Commissioner Koskinen have a legal obligation to preserve official work communications between employees. It appears that federal records are being deleted because the IRS, in a deal with its employee union, refuses to preserve certain types of electronic communications. This lawsuit seeks to ensure that IRS follows the law. No agreement with a union or any other party can supersede Americans right to know how the IRS makes decisions.”

Documents obtained by CoA Institute show that the IRS has a private agreement with its employee union stipulating that the agency will not save the instant message records of its employees. But the IRS cannot allow such an agreement to supersede its statutory obligations to preserve records.  In addition, the IRS is violating the law by regularly deleting all employee text messages as a matter of convenience.

Read more here.

Complaint here.

Full Disclosure: I sent the original FOIA Request.

Q&A: Take it to the limit

Q.  How many times can someone use FOIA to get information about another person from the same agency?  

A.  The federal FOIA does not limit the number of requests that an individual may submit.  Nor am I aware of any quotas on the state level.  

FOIA News: FAA Rolls Out Registered UAS Owner Location Database

FAA Rolls Out Registered UAS Owner Location Database

By Jane Edwards, ExecutiveGov, May 23, 2016

The Federal Aviation Administration has rolled out a database that contains information on the location of each registered owner of small unmanned aircraft systems in response to several Freedom of Information Act requests.

FAA said Wednesday the system only includes data on each UAS owner’s zip code, city and state and excludes the owners’ names and street addresses from disclosure in compliance with a FOIA exemption that seeks to safeguard data from possible infringement of personal privacy.

Read more here.

Court opinion issued May 20, 2016

Sack v. U.S. Dep't of Def. (D.C. Cir.) -- reversing district court's holding that a Ph.D. student was ineligible for reduced FOIA fees as an "education institution."  In reaching its ruling, the D.C. Circuit stated that the government's distinction between teachers -- who are eligible for reduced fees under OMB's 1987 fee guidance -- and students was "entirely unexplained and unpersuasive."  With respect to the polygraph records requested by plaintiff, the D.C. Circuit affirmed the district's decision that such records were protected from disclosure under Exemption 7(E). 

Summaries of all opinions issued since April 2015 available here. 

Q&A: It's log, log, log

Q.  Is it possible to submit a FOIA request for all FOIA that were submitted for the year 2015 to a local body of government [in Illinois]?  

A.  Not only is it possible, I've seen it done.  Note that various smaller-sized agencies in Illinois proactively publish their FOIA logs, e.g., Lake Bluff Elementary School District, City of Monticello.