FOIA News: FOIA Advisory Committee Meeting Held on July 21, 2016

On July 21, 2016, the National Archives and Records Administration's Freedom of Information Act (FOIA) Advisory Committee held an open meeting to discuss improvements to FOIA administration, develop consensus and recommendations for improving FOIA administration and proactive disclosures, and solicit public comments.

Court opinions issued July 18, 2016

Elec. Privacy Info. Ctr. v. Dep't of Homeland Sec. (D.D.C.) -- reducing award of fees sought by plaintiff by seventy-six percent after determining that seventy-six percent of plaintiff's briefs pertained to issues upon which plaintiff did not prevail in the underlying litigation.     

Stein v. U.S. Dep't of Justice (D.D.C.) -- (1) finding that the FBI properly invoked Exemption 7(D) to withhold information provided by a foreign source under an implied assurance of confidentiality; (2) ordering the FBI to process a separate request because the fees sought by the agency are prohibited due to agency's untimely response.

Summaries of all opinions issued since April 2015 available here.   

Q&A: Is FOIA going to the dogs?

Q.  The Animal Welfare League (AWL) in Chicago Ridge, IL is privately funded.  However, fifty-three municipalities and Cook County contract with AWL to deliver animal sheltering and claim they do not fall under the Illinois FOIA.  My argument is they are partially funded with government dollars. I  sure would like guidance to where I can information if in fact they must answer a FOIA?

A.  For an authoritative opinion, you might wish to to contact the Public Access Counselor (PAC) of the Illinois Attorney General's office.  The PAC mediates disputes between members of the public and public bodies concerning FOIA requests.  Additionally, the PAC investigates and issue opinions in response to "requests for review" submitted by members of the public when a FOIA request has been denied by a public body. 

FOIA News: TIME weighs in on FOIA at 50

FOIA at 50: How American Views of Transparency Have Changed

By Lily Rothman, TIME, July 21, 2016

The Freedom of Information Act was passed a half-century ago this month. A lot has changed since then

It started in 1953, when California Congressman John Emerson Moss Jr. was denied a request to access information from the U.S. Civil Service Commission. His quest to establish a “right to know”—something that is not contained in the Constitution, and was coined in the mid-20th century—led directly to the passage, 50 years ago this month, of the Freedom of Information Act (FOIA). The bill passed unanimously in the House and, despite the numerous exceptions already enshrined within it, changed the role of secrecy in American government by shifting the burden of justification from those who would uncover to those who would shield.

The change wasn’t only on paper: the lifespan of FOIA has been contemporaneous with a major shift in the way Americans think about transparency, as shown by historical opinion polls compiled by the Roper Center for Public Opinion Research in honor of the law’s anniversary.

Read more here.

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.