Court opinions issued July 6 & July 7, 2016

July 7, 2016

Shah v. U.S. Dep't of Justice (E.D. Ark.) -- finding that plaintiff failed to file administrative appeals in connection with three of his five requests to the Federal Bureau of Prisons and that the agency properly withheld certain information under Exemptions 6, 7(C), and 7(F).  

Atlasware, LLC v. Soc. Sec. Admin. (W.D. Ark.) -- dismissing lawsuit because plaintiff's attorney failed to identify his client in the request or administrative appeal.  In dicta, the court rejected plaintiff's argument that agency's cloud computing made venue proper under 5 U.S.C. § 552(a)(4)(B).    

July 6, 2016

Freedom Watch, Inc. v. Nat'l Sec. Agency (D.D.C.) --  determining that the CIA and Department of Defense conducted adequate searches regarding a military helicopter shot down in Afghanistan, that they properly withheld certain information pursuant to Exemptions 1, 3, 5, and 6, and that they released all non-exempt, reasonably segregable information. 

Summaries of all opinions issued since April 2015 available here.  

FOIA News: Corporations have targeted FOIA, says study from University of Arizona

Businesses have worked to cut ‘public’s right to know’

By Mike Chesnick, Futurity, July 8, 2016

Congress passed the Freedom of Information Act in 1966 so that citizens could have more access to public records and hold government accountable. Since then, less information has become available to the public about businesses, researchers report.

Jeannine Relly and Carol Schwalbe, both associate professors in the University of Arizona School of Journalism, analyzed 60 years of congressional testimony, finding that corporations lobbied to alter the scope of the FOIA.

“Though the FOIA is known as embodying the ‘people’s right to know,’ our research found that exceptions and exemptions to the law over time often favored the industries that lobbied heavily for information to be withheld,” Relly says.

Schwalbe says not receiving vital information through the press “reduces what the public learns about dangers to our health and safety, such as defective tires, bogus insurance policies, hazardous waste, and nuclear radiation.”

The researchers detail their findings in the journal Government Information Quarterly.

Read more here.

FOIA News: Records request flood in about Clinton, Lynch meeting

Records request flood in about Clinton, Lynch meeting

By Sarah Westwood, Washington Examiner, July 8, 2016

Amid a fierce backlash over the Justice Department's decision to close its investigation of Hillary Clinton this week without pressing charges, law enforcement officials must now face Freedom of Information Act requests seeking details of the controversial meeting between Attorney General Loretta Lynch and former President Bill Clinton.

America Rising, a Republican political action committee, submitted 20 FOIA requests to the Justice Department and state attorney general offices seeking discussions about the secret meeting, which came just one week before FBI Director James Comey announced he would not recommend an indictment for the former secretary of state.

The request to the Justice Department sought emails and text messages related to Lynch's meeting with Bill Clinton, as well as a copy of her official work calendar for June 27, the day of her brush with the former president.

Read more here.

FOIA News: Deleted Clinton emails now likely subject to open records requests

Deleted Clinton emails now likely subject to open records requests

By Sarah Westwood, Washington Examiner, July 7, 2016

While the case was unrelated to the Clinton email controversy, it could open the door for media outlets and watchdog groups to obtain the official emails that FBI agents recovered from Clinton's private servers.

Mark Zaid, a national security lawyer who regularly handles FOIA cases, said the Justice Department has likely lost its ability to hide behind exemptions in the open records law that protect documents related to an ongoing investigation from disclosure.

"They're in the possession of the FBI, so they're agency records as far as I'm concerned and should be subject to FOIA, especially because a number of those were work emails that were deleted by the lawyers," Zaid said.

He said Clinton's legal team "failed" in their duty to provide the government with all of the former secretary of state's official communication, although he stopped short of attributing those omissions to "malicious thought."

Read more here.

FOIA News: Cause of Action Institute: "More needs to be done to fix FOIA"

More needs to be done to fix FOIA

By Alfred J. Lechner, Jr., The Hill, July 6, 2016

Congress periodically updates the FOIA, yet federal agencies continue to find new ways to delay or avoid compliance. For example, although text messages and instant messages involving official government business are records subject to the FOIA, some agencies simply make no effort to store, locate, or search for these records, depriving the public of appropriate information.  Others, such as the IRS, acknowledge that such messages are records subject to the FOIA, and yet do not preserve them long enough for a requestor to seek access to them. Cause of Action Institute has sued the IRS over an agreement it signed with its employee union to destroy instant messages sent between IRS employees. This is a violation of the Federal Records Act and makes FOIA requests for these communications impossible.

Agencies and their employees need to be incentivized to provide greater disclosure and penalized for non-compliance. Agencies should recognize and reward employees who timely produce public records.  Congress should also enact penalties for agency non-compliance by making attorneys’ fees and costs mandatory if a FOIA requester has to sue to obtain records.

Since it was first enacted in 1966, Congress has passed major FOIA reform legislation in 1976, 1986, 1996 and 2007. The current decennial effort to amend the FOIA, while a welcome demonstration of congressional bipartisanship to promote Executive Branch transparency, is a missed opportunity to fix many longstanding, fundamental problems. Hopefully, the political will to solve these problems will manifest in time for the “FOIA Improvement Act of 2026.”

Read more here.

Court opinions issued July 5, 2016

Competitive Enterprise Inst. v. Office of Sci. & Tech. Policy (D.C. Cir.) -- reversing district court's decision that agency was not required to search for requested records maintained in the private email account of agency's director.  In reaching its decision, the court explained that “an agency always acts through its employees and officials.  If one of them possesses what would otherwise be agency records, the records do not lose their agency character just because the official who possesses them takes them out the door or because he is the head of the agency.” 

Moon v. Fed. Bureau of Prisons (E.D. Mo.) -- dismissing suit because plaintiff failed to pay fees associated with his request, i.e., he failed to exhaust his administrative remedies.

Summaries of all opinions issued since April 2015 available here.  

FOIA News: GAO suggests FOIA updates at Labor

Labor Department Overdue for FOIA Upgrades, Auditors Say

By Charles S. Clark, Gov't Executive,  July 5, 2016 

The same week President Obama signed a bill reforming the Freedom of Information Act, the Labor Department came into criticism for inefficiencies and out-of-date computer systems for responding to requests for documents.

Labor has “not updated its FOIA regulation to reflect changes in its process made in response to more recent amendments to the law and new implementing guidance,” the Government  Accountability Office concluded in a report dated June 2 but released June 30. The department, GAO said, “uses an information technology system to manage and track requests, but it has not implemented key required and recommended capabilities for enhancing FOIA processing, such as capabilities to accommodate individuals with disabilities or electronic redaction.”

Labor has been hit with multiple FOIA lawsuits due to delays, the auditors noted, and greater efficiency might help avoid them in the future.

Read more here.  

FOIA News: D.C. Circuit rules that FOIA may apply to non-government email accounts

Court: Officials can't use private email accounts to evade records laws

By Megan R. Wilson, The Hill, July 5, 2016

Federal officials may not use private mail accounts to get around public records laws, a federal judge ruled on Tuesday. 

The U.S. Court of Appeals for the D.C. Circuit overturned a lower court decision in which judges dismissed claims from the Competitive Enterprise Institute, a conservative think tank that attempted to obtain correspondence from a top White House official through the Freedom of Information Act (FOIA).

The White House’s Office of Science and Technology Policy (OSTP) said it did not need to search for or turn over records held by the head of OSTP on a private email account as part of the open records request.
In addition to official White House email, John Holdren, the director of the Office of Science and Technology Policy, also sent and received emails from a domain at the Woods Hole Research Center. 

Throughout the case, the government argued that “[d]ocuments on a nongovernmental email server are outside the possession or control of federal agencies, and thus beyond the scope of FOIA.” 

Judge David Sentelle, the chief judge to the U.S. Court of Appeals for the D.C. Circuit, disagreed with that reasoning and order the lower court to reconsider the case.

Read more here.  

FOIA News: Columbia Journalism Review on FOIA at 50

‘Kicking and screaming’: 50 years of FOIA

By Philip Eli, Columbia Journalism Review, July 1, 2016

THE FREEDOM OF INFORMATION ACT turns 50 on July 4. This is cause for celebration—and not just because President Obama signed a significant FOIA reform bill to mark the occasion (and atone in some small way for his abysmal FOIA record).

No, we should pause for FOIA’s birthday because every FOIA requester, whether they realize it or not, takes part part in a monumental, multi-decade experiment to see what happens when the most powerful nation in the world says, in essence, “We’re here, and legally obligated, to answer your questions.”

Since the law’s passage in 1966, FOIA requests have covered everything from nuclear tests in Alaska to vice-president Spiro Agnew’s resignation, from the last moments of the space shuttle Challenger to the attacks on September 11, from Amtrak cafeteria-car complaints to John Lennon’s FBI file. One New York Times op-ed from 1975 (published by the director of Ralph Nader’s Center for Study of Responsive Law) notes, “the Federal Government is the largest single creator and collector of information in the world,” and that FOIA “declares that all government documents, with certain specific exceptions, must be made available to the public.” The idea behind the law, if not its everyday application, remains awe-inspiring.

Read more here.

FOIA News: Happy 50th to the FOIA

In honor of this historic occasion, we have collected several documents related to the enactment of the statute:  

• LBJ's signing statement (from Nat'l Sec. Archive)
• Draft signing statements (from Nat'l Sec. Archive)
• LBJ's daily calendar for July 4, 1966 (which does not mention FOIA)
• Memorandum to the President, July 1, 1966 (from Nat'l Sec. Archive)
• List of principal files of LBJ Presidential Library concerning FOIA