Court opinions issued June 1, 2016

Gahagan v. U.S. Customs & Border Prot. (E.D. La.) -- awarding attorney fees and costs after determining that plaintiff substantially prevailed in lawsuit, but reducing requested fee amount by more than half due to attorney's excessive hourly rate and poor billing judgment.

Pinson v. U.S. Dep't of Justice (D.D.C.) -- granting summary judgment to Executive Office for United State Attorneys with respect to six requests submitted by pro se inmate (all involving search or fee issues), but denying EOUSA's motions concerning five other requests.   

Ctr. for Digital Democracy v. Fed. Trade Comm'n (D.D.C.) -- ruling that the FTC properly relied upon Exemptions 3 and 4 to redact confidential business information from annual reports submitted to the agency by "safe harbor programs." 

Summaries of all opinions issued since April 2015 available here. 

FOIA News: Vacancy announcement issued for OGIS Director

The National Archives and Records Administration is seeking candidates to replace James Holzer as Director of the Office of Government Information Services.  See vacancy announcement here.   Mr. Holzer resigned as Director effective May 13, 2016, after a nine-month tenure.  

Q&A: Wait, wait, wait for the Terrapin

Q.   I am submitting a request to a local agency in Carroll County, Maryland about a land development project being proposed for my neighborhood.  How long does it have to reply to my request?

A.   The short answer is 30 days.  If the agency needs more than 10 business days, however, it must notify the requester in writing or by email.  The notice must tell the requester how much time it will take to produce the record, the reason for the delay, and an estimate of the range of fees that might be involved in producing the record.  For additional information, see this guidance from the Maryland Attorney General.

Court opinion issued May 31, 2016

McAtee v. U.S. Dep't of Homeland Sec. (D. Mont.) -- holding that the U.S. Secret Service conducted a reasonable search for plaintiff's criminal case file and properly redacted third party information under Exemptions 6 and 7(C), but that agency's Vaughn Index did not provide sufficient information to permit the court to determine whether grand jury-related records were protected under Exemption 3.

Summaries of all opinions issued since April 2015 available here. 

FOIA News: Cause of Action Institute Sues CIA over FOIA Political Influence Records

From Cause of Action Institute's website:

Cause of Action Institute (CoA Institute) today filed a complaint in the U.S. District Court for the District of Columbia against the Central Intelligence Agency (CIA) seeking access to records concerning the undue influence of political appointees in processing Freedom of Information Act (FOIA) requests.  The requested records were created by the CIA Office of Inspector General (OIG) but are accessible under FOIA through the CIA. The CIA is one of the few agencies that has refused to release the relevant records without sufficient explanation.

CoA Institute President & CEO, and former federal judge, Alfred J. Lechner, Jr.: “All federal agencies have the obligation to efficiently and effectively respond to FOIA requests. After three years, the CIA has demonstrated it has no intention of providing the requested documents in a timely manner. The current administration has neglected its duties under FOIA and allowed federal agencies to undermine transparency requirements. Despite numerous media reports that have criticized the Obama administration for its poor efforts to ensure transparency and openness, agencies continued to abuse the law and permit political appointees to insert themselves into the FOIA process.”

Congress requested the OIGs of several agencies to conduct audits of their FOIA programs looking into inappropriate influence of political appointees in the processing of records requests.  In two seperate FOIA requests, CoA Institute requested the CIA OIG’s final reports, but the agency has yet to produce the documents.  In one case, the CIA has stonewalled CoA Institute for three years and has twice indicated that it “will not acknowledge or respond to any additional queries regarding the status” of the CoA Institute FOIA request.

FOIA News: OIP Director Provides Keynote Address at FOIA 50th Anniversary Celebration

OIP Director Provides Keynote Address at FOIA 50th Anniversary Celebration

Organizations around the country continue to celebrate the upcoming 50th anniversary of the FOIA. This week, Director Melanie Ann Pustay will provide a keynote address on Friday, June 3rd at the Columbia Journalism School’s “FOIA @ 50” celebration, and we invite you to watch her remarks through a live stream made available by the University.

Signed into law on July 4, 1966 by President Johnson, the FOIA continues to be “the most prominent expression of a profound national commitment to ensuring an open Government.” The Columbia Journalism School’s “FOIA @ 50” celebration is a multi-day event with presentations and panels focused on the statute’s first fifty years, observations from representatives of the public and civil society, and trends for the future.

When: 1pm on Friday the 3rd

Live stream: http://bitly.com/cjslive

Read more here.

FOIA News: Cause of Action Institute Petitions OMB to Update FOIA Fee Guide

Cause of Action Institute Petitions OMB to Update FOIA Fee Guide

June 2, 2016

Today, Cause of Action Institute filed a petition for rulemaking with the White House Office of Management and Budget (“OMB”), urging it to update its obsolete guidance document that federal agencies rely on when making FOIA fee determinations.  The petition seeks to implement Cause of Action Institute’s landmark legal win in Cause of Action v. Federal Trade Commission, where the D.C. Circuit ruled OMB’s guidance conflicts with the FOIA statute.

Read more here.

Read the petition here.

FOIA News: USA Today Op-Ed: "Kissinger's lessons in FOIA evasion"

Kissinger's lessons in FOIA evasion

By Glenn Harlan Reynolds, USA Today, June 2, 2016

Hillary Clinton’s problem is that she isn’t as smart as Henry Kissinger. And I’m not talking about her performance as secretary of State (though I could be) but rather about how she got into her festering, possibly criminal mess with insecure emails and an unauthorized private server.

Henry Kissinger is smart. When he left as secretary of State, he wanted to make sure that his communications (it was phone records then since email didn’t really exist) weren’t available to political enemies under the Freedom of Information Act (FOIA). That was tricky, since FOIA is supposed to be biased in favor of disclosure, with the presumption being that anything that isn’t exempt by law must be turned over on request, with close calls going to the requester.

To defeat this, Kissinger — without consulting the National Archives or a similar office at the State Department — removed his phone call records from the State Department to the Nelson Rockefeller estate; less than two months later he donated them to the Library of Congress, under agreements that the records would not be made public for many years without the consent of the other parties to the calls, which was unlikely to be forthcoming.

Read more here.

FOIA News: Judge orders GOP get more Clinton-related emails before conventions

Judge orders GOP get more Clinton-related emails before conventions

By Josh Gerstein, Politico, June 1, 2016

A federal judge ruled Wednesday that another batch of Hillary Clinton-related emails must be turned over to the Democratic presidential candidate's political adversaries in advance of the national political conventions this summer.

U.S. District Court Judge Ketanji Jackson ordered the U.S. Agency for International Development to produce a set of messages to the Republican National Committee by July 11 and to come up with a timeline by July 19 for disclosure of the remaining records.

Last December, the RNC sent two Freedom of Information Act requests to USAID. One demanded all emails between officials in 16 top positions at USAID and 10 Web domains connected to former Secretary of State Clinton, President Bill Clinton and their daughter Chelsea, including domains linked to the Clinton Foundation. The other request sought all emails between top USAID officials and 10 former State Department officials considered close to the Clintons, including Director of Policy Planning Anne-Marie Slaughter, Chief of Protocol Capricia Marshall and Deputy Chief of Protocol Dennis Cheng.

Read more here.

FOIA News: Hillary's IT aide will plead the Fifth

Clinton tech aide plans to take the fifth at deposition

By Josh Gerstein, Politico, June 1, 2016

A former information technology adviser to Hillary Clinton plans to exercise his Fifth Amendment right against self-incrimination at a deposition next week and wants to prevent any video recording being made of the session.

Lawyers for former State Department tech specialist Bryan Pagliano said in a court filing Wednesday that there's no valid reason to make an audio or video recording of the session since Pagliano doesn't plan to answer any of the questions he's asked by the conservative group Judicial Watch, which is pursuing a Freedom of Information Act lawsuit related to Clinton's private email server.

"Mr. Pagliano will invoke his right under the Fifth Amendment and decline to testify at the deposition noticed for June 6, 2016. Given the constitutional implications, the absence of any proper purpose for video recording the deposition, and the considerable risk of abuse, the Court should preclude Judicial Watch, Inc. ... from creating an audiovisual recording of Mr. Pagliano's deposition," Pagliano's lawyers Mark MacDougall and Connor Mullin said.

Read more here.