FOIA News: Court denies State Dept.'s request for 27-month extension to process Clinton-related email

Judge faults State Department for 'lax' response to Clinton-linked FOIA surge

By Josh Gerstein, Politico, July 26, 2016

A federal judge is faulting the State Department for slacking off in its effort to process Freedom of Information Act requests after the diplomatic agency finished cranking out about 30,000 of Hillary Clinton's emails earlier this year.

In an order Monday, U.S. District Court Judge Rudolph Contreras largely rejected a State Department request for a 27-month extension to respond to conservative group Citizens United's demands for emails between four former State officials and individuals at the Clinton Foundation and a consulting firm close to the Clintons, Teneo.

The judge said State's own data showed a "marked drop" in resources devoted to FOIA processing at the agency in February, around the time the last batch of emails Clinton turned over to State were publicly released.

"As clearly shown in Defendant’s graph, Defendant has, since February 2016, reduced the amount of resources it is devoting to FOIA processing ... his reduction occurred even though Defendant’s number of FOIA cases in litigation and Defendant’s number of open FOIA requests have not experienced a similar decrease," Contreras wrote. "Because these facts imply that Defendant has been 'lax ... in meeting its [FOIA] obligations...with all available resources. ...' the Court does not find a twenty-seven month extension of time appropriate."

Read more here. 

FOIA News: Inaugural meeting of Chief FOIA Officers Council

Chief FOIA Officers Council meets for the first time

By Luis Ferre Sadurni, Reporters Committee for Freedom of the Press, July 25, 2016

The Chief FOIA Officers Council, charged with addressing the most important difficulties in administering FOIA across government, met for the first time July 22 to begin the process of implementing a “release to one is a release to all” standard for federal records.

The policy would make agencies release FOIA-processed records to one requester and simultaneously to the general public by posting them online.

Concerns about the policy from both journalists and FOIA officers were addressed at the meeting. Many reporters worry that releasing requested documents to the public would compromise their reporting by allowing others to steal their “scoop.” Agency FOIA officers were troubled by the burden of ensuring records are accessible to all and in compliance with Section 508 of the Rehabilitation Act.

Melanie Ann Pustay, director of the Department of Justice’s Office of Information Policy, and Nikki Gramian, acting director of the Office of Government Information Services (OGIS), co-chair the council. The 103-member council also includes the deputy director for management of the Office of Management and Budget (OMB), the chief FOIA officer of each agency, and any other persons designated by the co-chairs.

Following enactment of the FOIA Improvement Act, the Obama administration charged the FOIA Officers Council and OMB with implementing the policy and addressing journalists’ and agencies’ concerns by Jan. 1, 2017.

Read more here.

FOIA News: The good, bad, and the ugly, by Columbia Journalism Review

How some recent FOIA news could help—and limit—access to government records

By Jonathan Peters, Columbia Journalism Rev., July 25, 2016

IF NOTHING WORTH HAVING COMES EASY, then freedom of information must be worth a lot. A recent FOIA reform promises to improve access to public records, and a federal appeals court decision this month made clear that agencies cannot shield their records from disclosure by storing them in a private email account—each a sign of progress. But other recent developments point toward the enduring challenge of empowering “citizens to know what their Government is up to,” as the Supreme Court once said.

In a story last week, ProPublica reporters told “aneurysm-inducing tales of protracted jousting with the public records offices of government agencies.” Jesse Eisinger, for example, said the SEC once told him that it would take 36 months to begin processing a request he filed, and Julia Angwin said it took an agency two years to fulfill (partially) one of her requests—by mailing the records to the wrong person, who herself had been waiting years for a response from the same agency. The tales paint an ugly portrait of a press and public that too often struggle to wrest documents from government control.

Read more here.

Court opinion issued July 21, 2016

Berard v. Fed. Bureau of Prisons (D.D.C.) -- ruling that BOP properly relied upon Exemptions 6, 7(C), 7(D), 7(E), and 7(F) to withhold certain information from a confidential informant report, but finding that the agency failed to release all segregable, non-exempt information.   

Summaries of all opinions issued since April 2015 available here.  

FOIA News: Kansas sues Pentagon for Gitmo records

Kansas sues Pentagon for Gitmo records

By Rebecca Kheel, The Hill, July 22, 2016

Kansas has sued the Defense Department for records related to the search for an alternative location to house Guantánamo Bay detainees, suggesting the information is being withheld for political reasons.

Kansas Attorney General Derek Schmidt filed the lawsuit Friday in federal court, saying the Pentagon has failed to respond to a Freedom of Information Act (FOIA) request for records on its site surveys of Kansas’s Fort Leavenworth and other locations.

“Our concerns are heightened because the administration admits it has the records we requested and initially promised to produce them but now are inexplicably dragging their feet until after the November election,” Schmidt said in a written statement Friday. “We are seeking some court-ordered sunshine now to discourage mischief later in the final weeks before the president leaves office."

Read more here.

Court opinions issued July 19, 2016

Nat'l Ass'n of Criminal Def. Lawyers v. U.S. Dep't of Justice (D.C. Cir.) -- affirming the district court's decision that DOJ properly relied upon the attorney work-product privilege of Exemption 5 to withhold its "Federal Criminal Discovery Blue Book," which contains "information and advice for prosecutors about conducting discovery in their cases, including guidance about the government's various obligations to provide discovery to defendants."  

Knuckles v. Dep't of the Army (S.D. Ga.) -- dismissing action as moot because agency provided pro se plaintiff with her employment records following lawsuit; denying plaintiff's claims for monetary damages, attorney fees, and the appointment of a Special Counsel to investigate the agency; granting plaintiff's claim for costs because she substantially prevailed.  

Bloomgarden v. U.S. Dep't of Justice (D.D.C.) -- concluding that agency properly redacted under Exemption 7(C) the names and signatures of government agents on proffer agreements that were otherwise disclosed to plaintiff.

Summaries of all opinions issued since April 2015 available here.   

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.