FOIA News: DOJ may withhold criminal discovery manual, D.C. Circuit rules

Court: Feds need not release post-Ted Stevens evidence guide

By Josh Gerstein Politico, July 19, 2016

A federal appeals court has declared that the Justice Department need not make public a guide to when prosecutors should disclose evidence to defendants in criminal cases, but two of the three judges deciding the case took the unusual step of indicating that they believe the manual should be public.

The U.S. Court of Appeals for the D.C. Circuit ruled unanimously Tuesday that the manual — created in the wake of the Justice Department acknowledging failures in the prosecution of the late Sen. Ted Stevens (R-Alaska) — is exempt from disclosure under the Freedom of Information Act because the guide qualifies as privileged attorney-work product.

The main opinion in the case, authored by Judge Sri Srinivasan, affirms a district court's decision rejecting a lawsuit in which the National Association of Criminal Defense Lawyers demanded release of the manual.

What's more striking is the concurring opinion from Judge David Sentelle, stating his view that while D.C. Circuit precedent required the rejection of the defense lawyers' plea for access, that precedent is wrong and should be overturned in favor of greater public access to federal prosecutors' litigation policies and practices.

Read more here.

FOIA News: New York Times sues for Defense Secretary Ash Carter's emails

New York Times sues for Defense Secretary Ash Carter's emails

By Austin Wright, Politico, July 18, 2016

Attorneys for The New York Times and the Justice Department are due in federal court Tuesday as part of a lawsuit seeking to force the Pentagon to release full copies of more than a thousand pages of work-related emails Defense Secretary Ash Carter sent and received from his personal account.

The lawsuit, filed in May but not previously reported, is the latest wrinkle in the ongoing saga over the use of personal email by top government officials. It’s an issue that has dogged Hillary Clinton’s presidential campaign and led earlier this month to a stinging rebuke from the FBI for the former secretary of state -- but no criminal charges.

Carter’s case has received little publicity in comparison to Clinton’s, but it also raises questions about the security procedures in place at the top rungs of the executive branch -- and whether officials are attempting to use their personal email accounts to skirt the Freedom of Information Act, the press and the public's main tool for forcing the release of government records short of the courts.

Read more here.

FOIA News: OIP Releases Guidance on New Requirements for FOIA Response Letters

OIP RELEASES GUIDANCE ON THE NEW REQUIREMENTS FOR FOIA RESPONSE LETTERS

Office of Information Policy, FOIA Post, July 18, 2016

On June 30, 2016, President Obama signed into law the FOIA Improvement Act of 2016, which contains several substantive and procedural amendments to the FOIA. OIP has prepared a summary of the amendments as well as a redlined version of the statute which shows the changes made by the amendments. Today, OIP has released its first guidance piece addressing the new amendments. The guidance addresses the new requirements for agency response letters and for notices extending the FOIA's time limits due to "unusual circumstances." The guidance addresses the:

• Requirement to notify requesters about the availability of the agency's FOIA Public Liaison to offer assistance,
• Requirements to notify requesters of their right to seek dispute resolution services from the Office of Government Information Services (OGIS) at NARA, and
• To afford the requester no less than 90 days from the date of the adverse determination on the request to file an administrative appeal.

Agencies should update their response letters and notices extending the FOIA’s time limits due to unusual circumstances to include the new requirements from the FOIA Improvement Act of 2016. OIP has prepared an implementation checklist, with sample language, to assist agencies in doing so.

Read the guidance here.

Court opinions issued July 15, 2016

Gahagan v. U.S. Citizenship & Immigration Servs. (5th Cir.) -- vacating district court's judgment and remanding case for further proceedings because the agency performed a new search two weeks before oral arguments that yielded additional responsive records.  

Lopez v. United States (11th Cir.) -- vacating dismissal of plaintiff's FOIA claims against Federal Bureau of Prisons and remanding for further proceedings because the district court failed to treat one claim on a motion for summary judgment and deprived plaintiff of an opportunity to present views on two other claims.  

Summaries of all opinions issued since April 2015 available here.

Court opinions issued July 14, 2016

Detroit Free Press v. U.S. Dep't of Justice (6th Cir.) (en banc) -- Overruling its 1996 decision that individuals do not possess privacy interest in their booking photos and remanding case to district court to conduct a new balancing analysis.  

Florez v. Cent. Intelligence Agency (2nd Cir.) -- remanding case to district court to reconsider whether the CIA properly refused to confirm or deny the existence of records concerning plaintiff's father, a Cold War-era Cuban diplomat, in light of FBI's release of documents concerning the same individual during pendency of appeal.

Det. Watch Network v. U.S. Immigration & Customs Enf't (S.D.N.Y.) -- rejecting government's argument that Exemptions 4 and 7(E) protected the unit prices, bed-day rates, and staffing plans in government contracts with private detention facility contractors.   

Summaries of all opinions issued since April 2015 available here.

Court opinions issued July 13, 2016

Rad v. U.S. Attorney's Office (D.N.J.) -- finding that the Executive Office for U.S. Attorneys conducted a thorough search for records pertaining to plaintiff's criminal case, but that it failed to sufficiently explain its withholdings.  

Truthout v. Dep't of Justice (9th Cir.) (unpublished) -- affirming district court's decision that FBI properly invoked Exemption 7(E) to withhold records related to agency's practice of verifying privacy waivers. 

Summaries of all opinions issued since April 2015 available here.

FOIA News: State Dept. ordered to justify redacting 200 Clinton emails

State Dept. ordered to justify redacting 200 Clinton emails

By Katie Bo Williams, The Hill, July 14, 2016

The State Department will soon have to produce more information about Hillary Clinton's emails that it has chosen to redact or withhold entirely.

A federal judge on Thursday gave the agency until Oct. 28 to produce a document known as a “Vaughn Index” — used to justify a decision to withhold information requested under a Freedom of Information Act (FOIA) request — for 200 emails that passed through Clinton's private server.

The conservative watchdog group Judicial Watch, which has brought a bevy of FOIA lawsuits against the State Department regarding Clinton’s use of the unorthodox email setup when she was secretary of State, will get to choose which documents it wants the department to provide rational for.

Read more here.

FOIA News: Court concludes FOIA does not require release of booking photos

Court concludes FOIA does not require release of booking photos

By Jonathan H. Adler, Washington Post, July 14, 2016

The U.S. Court of Appeals for the Sixth Circuit, sitting en banc in Detroit Free Press v. Department of Justice, has concluded that individuals have sufficient privacy interests in their police booking photos to preclude their release under the Freedom of Information Act. The decision, which produced an unusual lineup among the court’s justices, is available here.

Judge Cook wrote for the majority, joined by Chief Judge Cole and Judges Guy, Gibbons, Rogers, Sutton, McKeague, Kethledge and White. Her opinion begins:

In 1996, we held that the Freedom of Information Act (FOIA), 5 U.S.C. § 552, required the release of booking photos of criminal defendants who have appeared in court during ongoing proceedings, finding that criminal defendants lack any privacy interest in the photos. Detroit Free Press, Inc. v. Dep’t of Justice (Free Press I), 73 F.3d 93 (6th Cir. 1996). Twenty years and two contrary circuit-level decisions later, we find Free Press I untenable. Individuals enjoy a non-trivial privacy interest in their booking photos. We therefore overrule Free Press I.

Read more here.

FOIA News: MuckRock is launching a national database of FOIA exemptions

MuckRock is launching a national database of FOIA exemptions

By Joseph Lichtman, NiemanLab, July 14, 2016

In the 2015 fiscal year, the U.S. federal government processed 769,903 Freedom of Information requests. The government fully fulfilled only 22.6 percent of those requests; 44.9 percent of federal FOIA requests were either partially or fully denied. Even though the government denied at least part of more than 345,000 requests, it only received 14,639 administrative appeals.

In an attempt to make the FOIA appeals process easier and help reporters and others understand how and why their requests are being denied, MuckRock is on Thursday launching a project to catalog and explain the exceptions both the federal and state governments are using to deny requests.
…
When a user files a request through MuckRock that gets rejected, the site will provide context on the rejection, explaining how the exemptions should be properly applied, how other users overcame similar rejections, and sample letters to submit for appeal. It’ll also highlight data on how often each exception is used and how often they’re successfully appealed.

Read more here.

FOIA News: DOJ announces first meeting of Chief FOIA Officers Council

INAUGURAL CHIEF FOIA OFFICERS COUNCIL MEETING

Office of Information Policy, FOIA Post, July 13, 2016

The inaugural meeting of the newly established Chief FOIA Officers Council will be held on July 22, 2016. President Obama recently signed into law the FOIA Improvement Act of 2016, which, among other things, established a Chief FOIA Officer Council. The Chief FOIA Officer Council is co-chaired by the Directors of OIP and OGIS and is made up of each agency Chief FOIA Officer and the Deputy Director of Management of OMB. In accordance with the new law, the Council is tasked with developing recommendations for improving FOIA, sharing best practices, and developing and coordinating initiatives.

The meeting will be held at 2:00pm on July 22, 2016 at the South Court Auditorium of the Eisenhower Executive Office Building; 1650 Pennsylvania Avenue NW, Washington, DC 20502. This meeting will be open to the public and live streamed. We will post a link to the live stream so that members of the public and interested agency personnel can view the meeting on July 22.   

A limited number of seats are available for members of the public to attend in person. For security purposes registration is required. Please email DOJ.OIP.FOIA@usdoj.govEmail links icon with the subject line “CFO Council Meeting – Public” by COB on July 18, 2016 to request a seat. On July 19, we will respond to your email to confirm your attendance and provide a link for you to formally register by July 21 at 12pm.