Q&A: Fly or No-Fly?

Q.  Can you check whether my ex-husband and I appear on any government watch lists?  I ran a background check which showed nothing bad, but they listed my ex-husband as having a possible criminal driving or other criminal activity (which is false).  I do not want to pay airline fare to visit my cousin in Massachusetts if I am going to be turned away! 

A.   I can only suggest that you contact the U.S. Department of Homeland Security "Traveler Redress Inquiry Program"(TRIP), which is designed to assist individuals "who have inquiries or seek resolution regarding difficulties they experienced during their travel screening at transportation hubs." The following guidance from the American Civil Liberties Union might also be of interest.  

FOIA News: MuckRock converts to nonprofit status

After 6 years and thousands of public records requests, MuckRock turns nonprofit

By Kelly Hinchcliffe, Poynter, June 15, 2016

In the past year, MuckRock has helped reporters and others file more than 10,000 public records requests to government agencies. Now, the site will be posting some of its own public records since it has officially become a nonprofit organization.

MuckRock founder Michael Morisy made the announcement Wednesday and said he hopes the site’s new nonprofit status can lead to more crowdfunded public records projects.

I asked Morisy about why the change was necessary, how MuckRock will handle transparency within its own organization and what’s next for the website that’s dedicated to public records.

For people who don’t know, how did MuckRock get started?

MuckRock started in 2010 as a way to make public records easier for busy reporters: We help anyone file, track, and share their public records requests, and over the years we've added additional tools like crowdfunding for requests and projects. We're now publishing daily original reporting, such as a deep-dive into the private prison system, and working with users around the globe to help newsrooms, activists, and the general public better understand governmental operations.

Read more here.  

FOIA News: HHS proposes new FOIA regs for first time since 1988

The U.S. Department of Health and Human Services has issued a proposed rule that seeks to update its Freedom of Information Act regulations for the first time since 1988.  According to the notice published in today's Federal Register, the proposed rule incorporates statutory amendments made in 1996 and 2007, reflects changes in the agency's organization, makes the FOIA process easier for the public to navigate, and updates the agency's fee schedule.

HHS's proposed regulations do not incorporate the statutory amendments passed by Congress this week, which President Obama is expected to approve.  The deadline to submit comments to the proposed rule is August 15, 2016.  

Court opinion issued June 10, 2016

Tracy v. U.S. Dep't of Justice (D.D.C.) -- ruling that it was reasonable for the FBI to search for records concerning plaintiff by using his name as a search term and forgoing his date of birth, social security number, and the names of companies suggested by plaintiff.  The court further ruled that the FBI properly withheld the names of third parties under Exemption 6 and 7(C), and that it properly withheld the address of an internal web site under Exemption 7(E). 

Summaries of all opinions issued since April 2015 available here. 

FOIA News: House passes FOIA bill; Obama expected to sign

FOIA reform bill headed to Obama

By Josh Gerstein, Politico, June 13, 2016

A bill aimed at improving the federal government's responses to Freedom of Information Act requests passed the House on Monday and will soon be headed for the White House, where the measure is expected to be signed into law by President Barack Obama.

Both houses of Congress have been considering versions of the legislation for several years, with a bill coming very close to passage in 2014 before hitting a last-minute snag.

The House cleared the way for final passage of the FOIA Improvement Act Monday by agreeing to a version of the bill the Senate passed in March and which the White House said President Barack Obama would sign. The bill passed the House on a voice vote during the so-called suspension calendar used for non-controversial legislation.

"I believe that this is the best bill we can send to the president's desk. I have no doubt that the reforms contained in this bill will significantly improve the Americans' public ability to exercise their right to access information. The most important reform is the presumption of openness," Rep. Mark Meadows (R-N.C.) said.

In addition to adding a presumption in favor of disclosure to the actual text of FOIA, the bill would also create a centralized portal for FOIA requests across the government.

However, the legislation was watered down somewhat from earlier versions before it passed the Senate in March. The changes were made to overcome resistance by some federal agencies and their supporters on Capitol Hill.

Read more here.  

FOIA News: House to consider Senate FOIA bill tonight

House looks to send FOIA reform to Obama’s desk

Mario Trujillo, The Hill, June 13, 2016

Legislation to expand the public’s access to open records is nearing President Obama’s desk. 

The House on Monday evening is slated to take up the Senate’s version of reform to the Freedom of Information Act (FOIA), which the upper chamber passed in March.  

The House approved its own version in January, too. But instead of merging the bills in a conference committee, the House has decided to take up the Senate version to send to the White House. 

Various agencies, including the Justice Department, have lobbied against the changes in previous years. But the White House said it would sign the bill after the Senate hashed out a deal to bring skeptical senators on board back in March. 

"If the president receives this bill, he'll sign it," Sen. Patrick Leahy (D-Vt.), one of the sponsors, said at the time.

Read more here.  

A copy of the Senate's FOIA bill is here.   

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.