Q&A: Penalties for violating FOIA

Q.  What are the potential penalties for violations of FOIA, for example: (1) refusing to release FOIA eligible documents, (2) intentionally failing to record FOIA documents, (3) intentionally deleting massive numbers of FOIA documents, and
(4) excessively slow to release FOIA documents.  Have any federal employees been convicted of violating the FOIA? Who is the highest ranking federal employee to be convicted?

A.  The FOIA itself provides for the possibility of sanctions against an individual agency employee under limited circumstances.  Specifically, if a district court assesses attorney fees against the federal government and finds that the agency acted "arbitrarily or capriciously" in improperly withholding records, the U.S. Office of Special Counsel must "initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding."  5 U.S.C. § 552(a)(4)(F).  The agency must then implement whatever "corrective action" that the U.S. Office of Special Counsel recommends.  Id.     

Further, federal employees may be subject to criminal penalties for the willful and unlawful destruction, removal, or private use of federal records, See 18 U.S.C. § 2071.   

The U.S. Office of Special Counsel has not initiated any proceedings under 5 U.S.C. § 552(a)(4)(F) between 2008 and 2015, according to annual reports submitted by the U.S. Department of Justice to Congress.  I am not aware of any FOIA-related criminal convictions or prosecutions.  

Q&A: O Mother, Where Art Thou?

Q.  I am trying to locate my mother [name redacted], whose last known address is in Clemson, New Jersey.  

A.  Government agencies typically do not release personal contact information.  Perhaps you can find her by using one of the following resources listed here:  https://familysearch.org/wiki/en/Finding_Living_People_in_the_United_States. Best of luck.  

FOIA News: FOIA document on display at Nat'l Archives for 50th anniversary

More Chances to Wish FOIA A Happy Birthday!

OGIS Blog, June 8, 2016

If you missed seeing the original Freedom of Information Act (FOIA) signed by President Lyndon Johnson that was on display during our Sunshine Week Event, the National Archives is giving you another opportunity to wish the law a happy 50th birthday in person.

We are happy to announce that between June 15 and September 14, 2016, the FOIA will be on display in the National Archives’ permanent exhibition “Records of Rights” in the David M. Rubenstein Gallery. Members of the public can drop by during the Museum’s operating hours to view the exhibit for free.

Members of the press will have a special opportunity to photograph or videotape the document before it is placed on display. This informal press-only event will be on Monday June 13 in the National Archives’ Conservation Lab. See the press release for additional information.

Read more here.  

Court opinion issued June 8, 2016

Russell v. U.S. Dep't of State (9th Cir.) -- affirming lower court's finding that agency conducted an adequate search for records concerning death of plaintiff's son in China.  The court rejected plaintiff's argument that Ninth Circuit precedent requires agency affiant to "directly" supervise searches, holding that the affiant need only be "responsible for supervising" the search.   

Summaries of all opinions issued since April 2015 available here. 

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.