FOIA News: Washington Post on the FOIA's 50th

FOIA at 50

By Editorial Board, Wash. Post, July 3, 2016

THE PRINCIPLE of holding government to account is at the bedrock of U.S. democracy, and information about government decisions is essential for that accountability. The Freedom of Information Act, although not something every citizen comes in contact with, remains a vital tool for keeping government open and honest. While not perfect — not every request results in disclosure of information or documents — it at least offers a law-based process for citizens to seek information from the powerful. Does a citizen in a place like China or Russia have such a chance to pull aside the curtains of secrecy with a simple letter? No.

With bipartisan backing, Congress recently approved the first update to the Freedom of Information Act since 2007, and President Obama signed the bill Thursday. It will not resolve many of the backlogs and frustrations, but it contains important improvements.

First signed into law 50 years ago this weekend by a reluctant President Lyndon Johnson, the FOIA has had a significant impact. Consider the examples compiled by the National Security Archive, a nonprofit organization that has championed the use of the law; they show that, among other things, the law has been used to expose waste and mismanagement, unmask decisions on national security, and highlight threats to food safety. Records from the Food and Drug Administration, obtained by Bloomberg News under the FOIA, revealed that a product labelled “parmesan cheese” had no parmesan at all.

Read more here.

Court opinions issued June 29-July 1, 2016

July 1, 2016

Platsky v. Nat'l Sec. Agency (S.D.N.Y.) -- finding that the FBI, NSA, and CIA properly refused to confirm or deny the existence of certain records concerning plaintiff.   

June 30, 2016

Solers v. Internal Revenue Serv. (4th Cir.) -- affirming district court's decision that IRS properly withheld six types of records pursuant to Exemption 3 (26 U.S.C. § 6103), Exemption 5 (deliberative process privilege), and Exemptions 6 and 7(C).

Harper v. EEOC (W.D. Tenn.) -- adopting magistrate's recommendation to grant summary judgment to government, which had redacted certain information from requested documents pursuant to Exemption 5. 

June 29, 2016

Renewal Servs. v. U.S. Patent & Trademark Office (S.D. Cal.) -- dismissing plaintiff's suit because the requested records were publicly available and indexed on agency electronic system, notwithstanding plaintiff's claim that agency's electronic system had an " excessively onerous method for extracting information."

Summaries of all opinions issued since April 2015 available here.  

FOIA News: Dep't of Justice statement on enactment of FOIA amendments

PRESIDENT OBAMA SIGNS THE FOIA IMPROVEMENT ACT OF 2016

Office of Information Policy, FOIA Post, June 30, 2016

Today, as we approach the 50th anniversary of the Freedom of Information Act, President Obama has signed into law the FOIA Improvement Act of 2016.

In our democracy, the FOIA serves as a vital tool to keep citizens informed about the operations of their government. Since its enactment in 1966, the FOIA has been amended on a number of occasions to adapt to the times and changing priorities.  The FOIA Improvement Act of 2016 contains several substantive and procedural amendments to the FOIA, as well as new reporting requirements for agencies.  

In order to assist agencies in understanding all of the new changes to the FOIA, OIP has added two new resources to its website today. First, agencies and the public can find a detailed summary of all of the changes to the law on the "FOIA Resources" pages of our site. Additionally, OIP is making available a redline version of the FOIA which outlines each of the changes within the law. 

In the upcoming months, OIP will be issuing guidance to agencies on the implementation of the various new provisions of the law.  Announcements will be made on FOIA Post as new guidance is released. Agencies are encouraged to contact OIP's FOIA Counselor Service with any questions they may have on implementation of these new statutory provisions.

FOIA News: Obama signs FOIA reform legislation

Obama signs bill easing access to government records

By KVUE/AP, June 30, 2016

President Barack Obama has signed legislation into law making it easier for the public to obtain government records.

Federal agencies will now be required to consider releasing records under a "presumption of openness" standard, instead of presuming that the information is secret. Supporters say the shift will make it harder for agencies to block the release of government information.

The law aims to reduce the number of exemptions the government uses to withhold information.

An online portal will be created for individuals to submit document requests under the Freedom of Information Act. Agencies currently handle requests in different ways.

The law also places a 25-year sunset on the government's ability to withhold documents that demonstrate how the government reaches decisions.

Sens. John Cornyn (R-Texas) and Patrick Leahy (D-Vt.) issued statements following the signing:

“One of our country’s hallmark values is a commitment to open and transparent government, and today is an important step towards ensuring the American people can hold their government accountable,” Sen. Cornyn said. “I appreciate Senator Leahy’s partnership on this bill and I am pleased to see it become law today.”

“It is fitting that the original Freedom of Information Act shares its birthday with our republic itself, and that we celebrate it by ushering in the most significant reforms to our nation’s premier transparency law in 50 years,” Sen. Leahy said. “The FOIA Improvement Act brings FOIA into the digital age and ensures that sunshine, not secrecy, is the default setting of our government. I look forward to continuing to work with Senator Cornyn to ensure that FOIA remains a successful transparency tool in the years to come.”

FOIA News: Feds ask for 27-month extension to process emails of Clinton aides

State Department seeks 2-year-plus delay in suit for Clinton aides’ emails

By Josh Gerstein, Politico, June 30, 2016

Citing the agency's own errors in the handling of a request for emails of four former aides to Hillary Clinton, the State Department is asking a federal judge to extend the deadline to complete processing of the records by more than two years.

Justice Department lawyers notified U.S. District Court Judge Rudolph Contreras on Wednesday that State will be unable to meet the court-ordered deadline of July 21 in the lawsuit the conservative group Citizens United brought earlier this year seeking emails ex-State Department officials Cheryl Mills, Huma Abedin, Melanne Verveer and Michael Fuchs exchanged with individuals at the Clinton Foundation or a firm with ties to the Clintons, Teneo Consulting.

The government lawyers asked Contreras to give State an additional 27 months— until October 2018—to finish work on the request, processing documents at a rate of about 500 pages a month.

Read more here. 
 

Court opinions issued July 27 & 28, 2016

June 28, 2016

Bayala v. U.S. Dep't of Homeland Sec. (D.C. Cir.) -- reversing district court's decision that plaintiff failed to exhaust his administrative remedies, because the agency decision that plaintiff did not administratively appeal before filing suit was abandoned in part and modified in part by the agency in litigation. 

Wilson v. U.S. Dep't of Justice (D.D.C.) -- finding that the Executive Office for U.S. Attorneys properly relied upon Exemption 7(C) to protect third-party information in plaintiff's criminal case file, but declining to grant summary judgment because EOUSA's declaration failed to establish that a reasonable search had been performed.

June 27, 2016

Reedom v. Soc. Sec. Admin. (D.D.C.) -- dismissing suit against three agencies because plaintiff failed to submit proper authorization forms, failed to pay fees, failed to reasonably describe records sought, failed to submit administrative appeals, or failed to wait 20 days for appeal response before filing suit.   

Summaries of all opinions issued since April 2015 available here.  

FOIA News: State Department's FOIA backlog getting worse

Amid Clinton email mess, State Department FOIA backlog surges

By Josh Gerstein, Politico, June 29, 2016

The State Department's backlog of Freedom of Information Act requests has surged to an all-time high in the wake of the disclosure of Hillary Clinton's use of a private email server during her time as secretary of state, according to newly disclosed figures.

About 29,000 FOIA requests are currently pending at State, up from a little under 22,000 last September, State FOIA official Eric Stein said in a court filing this week.

The number of FOIA lawsuits against State also continues to climb, and stood at 106 as of Monday, Stein said. That's up from 73 a little over a year ago — a time when State was already complaining that it was struggling under "a crushing workload."

State provided the numbers to U.S. District Court Judge James Boasberg on Monday as the diplomatic agency resisted a bid by the Republican National Committee to speed up the disclosure of emails that 14 top State Department officials during Clinton's tenure sent to or received from accounts at a dozen web domains associated with the former secretary, former President Bill Clinton and the Clinton Foundation.

Read more here.
 

FOIA News: The ABA Journal on the FOIA's 50th anniversary

50 years later, Freedom of Information Act still chipping away at government's secretive culture

By David L. Hudson, ABA Journal, July 1, 2016 ed.  

On Independence Day 50 years ago, President Lyndon Baines Johnson reluctantly signed into law the Freedom of Information Act. President Johnson thought it was terrible legislation and considered a veto after it was passed by Congress. He signed the bill into law on his Texas ranch instead of at a celebratory event at the White House.

Johnson’s comments at the low-key signing ceremony at the ranch illustrated his mixed feelings about the new law. “I signed this measure with a deep sense of pride that the United States is an open society,” he said. “I have always believed that freedom of information is so vital that only the national security, not the desire of public officials or private citizens, should determine when it must be restricted. At the same time, the welfare of the nation or the rights of individuals may require that some documents not be made available. As long as threats to peace exist, for example, there must be military secrets.”

Johnson’s comments still describe the ongoing tension between the commitment to disclosure of government information to members of the press and public measured against the governmental inclination to withhold information, most often on grounds of national security.

Read more here. 

Q&A: appealing the G-man

Q.  With an FBI appeal response of " Only partial records will be disclosed . . . further disclosure might jeopardize operational procedures," I was directed to contact the OGIS division of the National Archives, and failing that, litigate in U.S. District Court.  Is there any other way I might expedite this process?

A.  If you have exhausted the administrative appeals process, you are entitled to file a lawsuit immediately; you are not required to mediate your dispute via OGIS.  Alternatively, you can submit a request for reconsideration of your appeal.  Although requesters are not entitled by law to seek reconsideration, in my experience the Department of Justice will adjudicate them.    

FOIA News: Judicial Watch obtains more Clinton emails

More Clinton emails released, including some she deleted

By Michael Biesecker  & Stephen Braun, AP, Jun. 27, 2016

An additional 165 pages of emails from Hillary Clinton's time at the State Department surfaced Monday, including nearly three dozen that the presumptive Democratic presidential nominee failed to hand over last year that were sent through her private server.

The latest emails were released under court order by the State Department to the conservative legal advocacy group Judicial Watch. The batch includes 34 new emails Clinton exchanged through her private account with her deputy chief of staff, Huma Abedin. The aide, who also had a private email account on Clinton's home server, later gave her copies to the government.

The emails were not among the 55,000 pages of work-related messages that Clinton turned over to the agency in response to public records lawsuits seeking copies of her official correspondence. They include a March 2009 message where the then-secretary of state discusses how her official records would be kept.

"I have just realized I have no idea how my papers are treated at State," Clinton wrote to Abedin and a second aide. "Who manages both my personal and official files? ... I think we need to get on this asap to be sure we know and design the system we want."

Read more here.