FOIA News: State Department FOIA staff was aware that Clinton did not use government e-mail address

Clinton BlackBerry photo led to State official’s query about email account

By Josh Gerstein, Politico, June 9, 2016

An iconic photograph of then-Secretary of State Hillary Clinton using her BlackBerry while wearing sunglasses on a military plane in 2011 prompted a recordkeeping official in her office to inquire about whether Clinton had been assigned a State.gov email address, the State Department disclosed this week.

Clarence Finney, who oversaw an office responsible for Freedom of Information Act searches, raised the question about an official account after seeing the photo in the media, according to testimony at a deposition held Wednesday and released Thursday. The image went viral on social media in 2012, prompting a "Texts from Hillary" meme.

"When Mrs. Clinton's photo appeared in the media with her using — appearing to use some sort of a mobile device, Clarence Finney checked with [information management staff] to confirm ... whether the answer was still that she did not have a State.gov e-mail account," State Director of Executive Secretariat Staff Karin Lang said.

Lang said Finney was told at the outset of Clinton's tenure as secretary that, "like her predecessor, [Clinton] would not use an official account." The follow-up question prompted by the photo elicited the same answer, that Clinton "still did not have a State.gov account," Lang added.

Read more here.

FOIA News: Commercial requester stymied by CFPB's Glomar responses

Consumer Watchdog Bars the Door

By Yuka Hayashi, Wall St. J., June 8, 2016

For years, Wall Street firms have used the federal open-records system to seek information relevant to investment decisions. Now, the relatively young Consumer Financial Protection Bureau is also fielding requests from analysts, and they aren’t happy with the agency’s response.

The CFPB, which was created after the financial crisis and began operation in 2011, is the latest federal agency to reject requests using a “Glomar response,” named after the Glomar Explorer, a Cold War-era ship used by intelligence officials to retrieve sunken Soviet submarines.

Often, when agencies turn down a Freedom of Information Act request, they cite one of nine exemptions, including one saying the information could “reasonably be expected to interfere with enforcement activities.”

With a Glomar response, in contrast, an agency says it can “neither confirm nor deny” the existence of the requested record, a step that lawyers and academics said is supposed to be reserved for cases in which officials determine that even acknowledging a document in its files could compromise national security or damage someone’s privacy.

The CFPB’s use of Glomar has sparked a dispute with a financial newsletter publisher who combs through regulatory records to identify companies that may face investigation for potential misconduct, seeking scoops for his business. For example, if the publisher finds out that an agency is investigating a company, he can inform his subscribers, who then can use that information to bet against the stock.

John Gavin, the Minneapolis-based publisher of Probes Reporter, sends thousands of FOIA requests every year to the Securities and Exchange Commission and fought the regulator in court over its Glomar responses in the middle part of the last decade. Since the court case ended in 2007, Mr. Gavin said the SEC has stopped denying his requests for information using Glomar responses.

Mr. Gavin is now taking that same battle to the CFPB.

Read more here

FOIA News: OIP Director Encourages Agency Cooperation With Requesters

Top FOIA official: Give agencies a hand in ‘massive search’ for documents

By Jory Heckman, Federal News Radio, June 7, 2016

One of government’s leading officials on the Freedom of Information Act says agencies need more open channels of communication with members of the public seeking government records.

Melanie Pustay, the director of the Office of Information Policy at the Justice Department, said agency FOIA officers need to do more to break down the barriers of communication that exist between government and those filing requests for information.

“It is not up to the requester to understand the records system of the agency. Obviously that is what the job of the agency official is — is to know what records we have, to be able to relay that to the requester, and then kind of together work on a plan for managing a request, particularly a really big request,” Pustay said Friday at Columbia University’s School of Journalism.

FOIA, which became law 50 years ago, came under fire in March when a panel of government transparency officials described the obstacles that requesters experience when communicating with agency FOIA officers.

One recurring frustration OIP has heard from the requester community is that agencies won’t correspond with them via email, even if they request it.

Read more here.  

Court opinion issued June 2, 2016

Gahagan v. U.S. Citizenship & Immigration Servs. (E.D. La.) -- ruling that plaintiff was not entitled to attorneys' fees or costs largely because his request sought a "single record for use in his client's removal proceedings.  He had no larger purpose aimed at benefitting the public. . . ." 

Summaries of all opinions issued since April 2015 available here. 

FOIA News: State Dept.: 75-year wait for Clinton aide emails

State Dept.: 75-year wait for Clinton aide emails

By Tom LoBianco and Laura Koran, CNN, June 7, 2016

The Republican National Committee would have to wait 75 years for the State Department to release emails from top aides to then-Secretary of State Hillary Clinton, according to a recent court filing.

State Department lawyers argue in a filing made last Wednesday that gathering 450,000 pages of records requested for former Clinton aides Cheryl Mills and Jacob Sullivan and top State Department official Patrick Kennedy would take three quarters of a century.

"Given the Department's current FOIA workload and the complexity of these documents, it can process about 500 pages a month, meaning it would take approximately 16-and-2/3 years to complete the review of the Mills documents, 33-and-1/3 years to finish the review of the Sullivan documents, and 25 years to wrap up the review of the Kennedy documents -- or 75 years in total," the State Department argued in the filing.

Read more here.

FOIA News: Gov't files affidavit under seal in HRC email case

FBI offers second secret filing in Clinton email suit

By Josh Gerstein, Politico, June 6, 2016

The FBI is offering a federal judge a second secret glimpse into the investigation into Hillary Clinton's private email server.

The Justice Department asked a federal judge Monday to accept "additional details" under seal about how the FBI conducted its search for records a Vice News journalist requested under the Freedom of Information Act from the law enforcement agency about the probe it is conducting into Clinton's email set-up and how classified information came to reside in the Democratic presidential candidate's account.

"These details supplement defendant’s showing that it conducted a reasonable search, but cannot be disclosed on the public record without compromising information that the FBI seeks to protect," Justice Department lawyers wrote, citing FOIA exemption for ongoing government investigations and enforcement actions.

It's the second time the Justice Department has sought to give U.S. District Court Judge Randolph Moss a secret update on the high-profile, Clinton-related inquiry.

Read more here.
 

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.