Court opinions issued Aug. 16 & 17, 2016

Aug. 17, 2016

ACLU v. FBI (D. Mass.) -- finding that: (1) the FBI conducted a reasonable search for records concerning the FBI's Boston field office and the Joint Terrorism Task Force; (2) the FBI did not justify its use of Exemption 7(E) to withhold staffing and budget information or certain case statistics; and (3) the Executive Office for United States Attorneys was required to conduct a search because it failed to prove that all records in its possession would be duplicative of FBI's records.

Aug. 16, 2016

Carter v. United States (S.D. Ohio) -- granting summary judgment to the Executive Office for United States Attorneys because the agency averred that it never received plaintiff's request and plaintiff was unable to establish otherwise.

Widi v. McNeil (D. Me.) -- in a case aptly described by the court as "tortuous," the court ruled that: (1) the Bureau of Alcohol, Tobacco, and Firearms, and Explosives performed an adequate search for records about plaintiff's criminal trial; (2) the government properly withheld certain records pursuant to Exemption 7(E), but that it did not prove that it properly withheld certain records under Exemptions 3, 5, 7(D), or 7(F); (3) the Executive Office for United States Attorneys properly referred certain records to ATF for processing.    

Summaries of all opinions issued since April 2015 available here.  

FOIA News: OIP Announces Second Meeting of the Chief FOIA Officers Council

Second Meeting of the Chief FOIA Officers Council

8/18/16

The next meeting of the Chief FOIA Officers Council will be held on Thursday, September 15, 2016.  At this meeting, OIP will brief the Council on the feedback received from agencies on the "Release to One is a Release to All" presumption and will provide journalists an opportunity to share their views on the presumption.  The meeting will be held at:

Second Chief FOIA Officers Council Meeting
GSA Central Office - Auditorium
1800 F Street, NW
Washington, DC 20405
September 15, 2016 - 10am to 12pm

This meeting will be open to the public, and time will be provided for members of the public to address the Council.  If you would like to address the Council at the meeting, either as a journalist or a member of the public, please request this in your registration email.  Written comments pertaining to the “Release to All” presumption policy may be submitted to ReleaseToAll@usdoj.govEmail links icon.      

While the “release to one is a release to all” presumption is the first topic being considered by the Council, the Director of OIP will also provide an update on the consolidated FOIA portal in anticipation of further engagement with the Council on that topic.       

For security purposes registration for this meeting is required.  Please email DOJ.OIP.FOIA@usdoj.govEmail links icon with the subject line “CFO Council Meeting – Public” by 5:00 PM on September 7, 2016.

FOIA News: Defense IG recommends FOIA updates

Watchdog: Pentagon needs to update FOIA policies

By Rebecca Kheel, The Hill, Aug. 18, 2016

The Department of Defense (DOD) needs to improve its policies on responding to public-records requests, according to a new inspector general report.

The Pentagon’s inspector general evaluated the department’s Freedom of Information Act (FOIA) policies at the request of Senate Homeland Security and Governmental Affairs Committee Chairman Ron Johnson (R-Wis.), who wanted to know whether political appointees were adversely affecting responses from January 2007 to July 2015.

While the report called for the Pentagon to implement changes, it found no evidence of appointed officials unduly influencing responses to requests.

Read more here.

FOIA News: Democrats seek Trump's correspondence with IRS

Democrats File FOIA Request for Trump's IRS Correspondence

By Michael Cohn, Accounting Today, Aug. 17, 2016

 A Democratic super PAC has come up with a new way to try to get Donald Trump’s tax information: by filing a Freedom of Information Act request with the Internal Revenue Service.

The political action group, the Democratic Coalition Against Trump, filed the FOIA request Monday, seeking all correspondence between Trump and the IRS. It is unclear whether the IRS can release such information, as it has traditionally safeguarded personal tax information according to strict taxpayer privacy laws. In addition, government agencies can take months, if not years, to respond to FOIA requests, and even when the information is released, it can be in partial or redacted form.

Trump has so far refused to release any of his tax returns, claiming they are under “routine audit” by the IRS, and it is unclear whether they will be released before the November election. Last Friday, Trump’s Democratic rival, Hillary Clinton, and her running mate, Virginia Senator Tim Kaine, released their 2015 returns in an effort to pressure Trump (see Clintons Made $10.6 Million, Paid $3.6 Million Tax). Hillary and Bill Clinton noted they have released their tax returns going back to 1977.

Read more here.

FOIA News: DOJ OIP launches new Chief FOIA Officer Council page

OIP launches new Chief FOIA Officer Council page

DOJ OIP, August 17, 2016

OIP is pleased to announce the launch of a new page on its website dedicated to the work of the Chief FOIA Officer (CFO) Council. Recently established by the FOIA Improvement Act of 2016, the CFO Council is composed of all agency CFOs, plus the Deputy Director for Management from the Office of Management and Budget (OMB), and is co-chaired by the Directors of OIP and the Office of Government Information Services (OGIS). In fulfilling its responsibilities, the Council will meet regularly to develop recommendations for increasing FOIA compliance and efficiency, disseminating information about agency experiences and best practices, and working on initiatives that will increase transparency. Agencies and the public can access resources related to the work of the Council, including agendas and meeting minutes from past meetings as well as details on future meetings, on this dedicated page.    

Read more here.

FOIA News: Cause of Action Addresses D.C. Circuit's Rejection of 'Non-Responsive' Redactions

There is No Tenth Exemption

By James Valvo, Cause of Action, August 17, 2016

The Freedom of Information Act (“FOIA”) provides access to records, not information.  This may seem like a minor distinction but in the FOIA world it can mean the difference between uncovering government wrongdoing and having your request rejected because it was poorly thought out.  The distinction also means that when agencies are conducting a search for responsive records they should not be able to withhold portions of information contained within responsive records, unless that information falls within one of the nine statutory exemptions.  There is no “tenth exemption” that allows agencies to withhold information within responsive records just because that information is non-responsive to the request.

An examination of the statute’s terms confirms this analysis.  The statutory section that empowers requesters to get documents from the government speaks in terms of “records”  not “information.”  FOIA requires “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules . . . shall make the records promptly available to any person.”[1]  The agency must search, “manually or by automated means, agency records for the purpose of locating those records which are responsive to a request.”[2]

The statutory language that allows requesters to access “records” is limited by agencies’ ability to withhold portions of those records if one of the nine statutory exemptions applies.[3]  However, the agency may only redact exempt information and any “reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.”[4]  FOIA “does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section.”[5]

Taken together, these provisions mean that requesters can access agency records and agencies may only withhold portions of those records if they fall within one of the nine statutory exemptions.  They are not authorized to withhold any other information.

Read more here.

FOIA News: Dep't of Labor to amend FOIA regulations

The U.S. Department of Labor plans to revise its FOIA regulations "to update and streamline the language of several procedural provisions and to incorporate changes . . . under the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016."  A pre-publication copy of the Department's revisions are available here.  The deadline for public comments is October 17, 2016.  

FOIA News: State Department to release Clinton emails recovered by FBI

State Department to turn over emails recovered from Clinton server

By Laura Koran, CNN, Aug. 15, 2016

The State Department has agreed to provide the conservative watchdog group Judicial Watch with all official emails sent or received by Hillary Clinton that were recovered from her private email server by the FBI investigation.

The agreement was announced in a court filing and State Department Director of Press Relations Elizabeth Trudeau confirmed the decision in a statement to CNN. The State Department's attorneys will provide a proposed production schedule next week.

The State Department has not said whether it will release these emails to the public, as it did with the nearly 55,000 pages of work-related emails Clinton provided last year.

Read more here.

Court opinion issued Aug. 11, 2016

Rodriguez v. U.S. Dep't of Justice (D.D.C.) -- finding that the supplemental declaration filed by the Executive Office for United States Attorneys demonstrated that the agency conducted a reasonable search for certain grand jury information concerning plaintiff's criminal case in the Eastern District of Pennsylvania.

Summaries of all opinions issued since April 2015 available here. 

Court opinions issued Aug. 10. 2016

Va.-Pilot Media Cos. v. Dep't of Justice (E.D. Va.) -- awarding plaintiff $100,000 in attorneys' fees and costs, reducing the requested amount by $27,857.50 for excessive time spent on the fee petition, unreasonably hourly rates for certain support staff, and time spent on administrative proceedings.  

McAtee v. U.S. Dep't of Homeland Sec. (D. Mont.) -- deciding that the Executive Office of United States Attorneys properly withheld various grand jury information pursuant to Exemption 3.

Pinson v. U.S. Dep't of Justice (D.D.C.) -- concluding that the Bureau of Prisons properly relied upon Exemptions 7(E) and 7(F) to withheld in full records about third-party inmates even though they had signed release authorizations; further finding that BOP failed to adequately search for public comments to certain proposed agency regulations, but that it adequately searched for records responsive to plaintiff's remaining requests.  

Summaries of all opinions issued since April 2015 available here.