Q&A: Winter, spring, summer, or fall . . . all you've got to do is call

Q.   I have been a U.S. citizen for approximately 50 years, yes 50 years!!! I lost my naturalization papers which I need in order to get another hard copy of my SS card, which I also lost.  I was told by the USCIS office to submit a foia request while waiting for my papers and should not take longer than 30 days. It has now been 60 days and I am still on number 4 of 10 when I check the status.  Last week I was 3 of 10, but when I checked again the end of the week I had gone down to 4.  EXTREMELY FRUSTRATING!!!!!!!!!! There is a state of urgency no one appears to care about. I don't want a copy to frame and hang on my wall, I need it to work!!!! How can I communicate with an actual person in that department??!!!

A.  The contact information for the FOIA Public Liaison of the United Stated Citizenship and Immigrations Services is as follows: 

National Records Center, FOIA/PA Office
P. O. Box 648010
Lee's Summit, MO. 64064-8010
FOIA Officer/Public Liaison: Jill Eggleston
Phone: 1-800-375-5283 (USCIS National Customer Service Unit)
Fax: 816-350-5785
E-mail: uscis.foia@uscis.dhs.gov

I note in this context that FOIA backlog at USCIS was significant enough to trigger a putative class action lawsuit in 2015.  

FOIA News: Independent assessment finds federal agency release rate for FOIA much lower than claimed

Independent assessment finds federal agency release rate for FOIA much lower than claimed

By Tom Susman, Sunlight Foundation, August 26, 2016

On a few occasions in the past couple of months, I have heard the refrain repeated that the Obama administration has a 91 percent disclosure rate for responses under the Freedom of Information Act. Melanie Pustay, the director of the Office of Information Policy at the Justice Department, used that figure at a Columbia conference in New York in June. Shaun Donovan, the director of the White House Office of Management and Budget, recited it at the FOIA Advisory Committee meeting last month.

I was curious about that percentage since it sounded extremely – actually unbelievably – high to me. Professor Peter Strauss also questioned the number during the Columbia conference. I asked a colleague who is adept at data crunching to go on FOIA.gov and see if he could figure out how you reached that number. He was able to identify the relevant FOIA data and incorporated it into the spreadsheet below.

If you include full and partial releases as constituting the total release rate, the ratio for all agencies in FY 2015 is 90.6 percent. That is likely where you are getting the 91 percent figure. That total release rate is not included as part of the FOIA data, but it has been added to the spreadsheet as the last column (highlighted in blue) by adding the released in full and released in part ratios.

If you look at the rates separately, for all agencies in FY 2015, the released in full ratio is 51.84 percent and the released in part ratio is 38.76 percent. We’ve inserted those numbers at the bottom of the spreadsheet where the total numbers for all agencies are calculated.

Read more here.

Court opinions issued Aug. 25 & 26, 2016

Aug. 26, 2016

Gov't Accountability Project v. Food & Drug Admin. (D.D.C.) -- holding that Section 105 of the Animal Drug and User Fee Amendments of 2008 does not qualify as an Exemption 3 statute, and denying summary judgment to both parties with respect to whether disclosure of records concerning antimicrobial drugs sold and distributed in 2009 would likely cause harms protected by Exemption 4.  

Yunes v. U.S. Dep't of Justice (D.D.C.) -- ruling that the State Department adequately searched the embassy of the Dominican Republic for records concerning plaintiff's visa revocation, and that all of the FBI's withholdings were proper except for its application of Exemption 3 in conjunction with the Bank Secrecy Act to withhold a Financial Crimes Enforcement Network report.

Bartko v. U.S. Dep't of Justice (D.D.C.) -- finding that the Securities and Exchange Commission conducted an adequate search for records pertaining to plaintiff's criminal prosecution.  

Aug. 25, 2016

N.Y. Times Co. v. Nat'l Sec. Agency (S.D.N.Y.) -- determining that the NSA properly redacted information from two Inspector General reports pursuant to Exemption 1 and denying in camera review because the agency's declaration "articulated a reasonably detailed explanation for the redactions which was both logical and plausible."

Summaries of all opinions issued since April 2015 available here.  

Q&A: Can the DEA just say no?

Q.  Can the Drug Enforcement Administration (DEA) closed investigations be FOIAed? I submitted a DEA FOIA request seven days ago and I've yet to receive an acknowledgement that my request was received.

A.  Nearly all agency records are subject to FOIA, though not all may be released, of course. The fact that a DEA investigation is deemed "closed" merely affects whether DEA may rely upon Exemption 7(A) to withhold records.  If the investigation concerns a third party, the DEA is likely to withhold certain records under Exemptions 6 and 7(C) -- and based upon my experience reviewing DEA records, Exemptions 7(D), 7(E), and 7(F) -- or it might even refuse to confirm or deny the existence of records depending on the circumstances.   

If your request will take longer than ten days to process, the agency is required provide you with an individualized tracking number -- which is usually transmitted via an acknowledgment letter.  If you have a question about the status of your request, here is DEA's contact information:  Tel. (202) 307-7596 (Hotline); Fax: (202) 307-8556
Email: DEA.FOIA@usdoj.gov.

Court opinion issued Aug. 24, 2016

Miles v. Dep't of Justice (D.D.C.) -- ruling that multiple components of DOJ performed adequate searches in response to pro se prisoner's request for correspondence concerning certain criminal laws. 

Summaries of all opinions issued since April 2015 available here.  

Court opinion issued Aug. 22, 2016

Zaldivar v. U.S. Dep't of Veterans Affairs (D. Ariz.) -- holding that: (1) plaintiff failed to exhaust his administrative remedies with respect to his request for certain records from his claim file; (2) the agency conducted an adequate search in response to his request for records concerning his former spouse; (3) the agency properly relied on Exemption 6 to withhold certain about plaintiff's former spouse.  

Summaries of all opinions issued since April 2015 available here.  

FOIA News: The Pentagon’s use of FOIA is flawed. Now it wants to make it even stricter.

The Pentagon’s use of FOIA is flawed. Now it wants to make it even stricter.

By Dan Lamothe, Washington Post, August 24, 2016

A wide-ranging group of government transparency advocates asked Congress on Wednesday to block new changes to the Freedom of Information Act requested by the Defense Department, saying that approving them would allow the Pentagon to “excuse itself from the hard fought and necessary reforms.”

The letter, signed by organizations ranging from Human Rights Watch to the National Press Club and released by the Project On Government Oversight, said that language in the Senate version of the proposed 2017 National Defense Authorization Act would provide the military with a new exemption to FOIA that is overly broad and potentially easy to abuse.

The proposal would give the Pentagon the ability to withhold information about unclassified tactics, techniques and procedures used by the Armed Forces. It’s so broad, the letter argues, “it could allow DoD to withhold almost any unclassified document at all related to Defense Department operations and could be used to justify concealing just about any material DoD creates.”

Read more here.

Read the coalition letter here.

Court opinions issued Aug. 18 & 19, 2016

Aug. 19, 2016

Gahagan v. U.S. Citizenship & Immigration Servs. (E.D. La.) -- concluding that: (1) referring record is not per se improper, but that ICE did not justify withholding four pages that USCIS referred to ICE; (2) the declaration of the U.S. Customs and Border Patrol failed to account for two withheld pages; (3) CPB and USCIS demonstrated that they conducted legally adequate searches; (4) USCIS was required to disclose duplicate records subject to authorized redactions; and (5) USCIS performed a reasonable segregability analysis for two of three disputed exhibits.

Aug. 18, 2016

People for the Ethical Treatment Animals v. HHS (D.D.C) -- ruling that the Centers for Disease Control and Prevention properly relied on Exemption 4 to withhold four categories of information concerning the importation of animals, but that plaintiff was entitled to the names of the species of animals imported and to all five categories of information submitted by three companies that did not object to disclosure.  

Summaries of all opinions issued since April 2015 available here.  

FOIA News: CFPB to amend FOIA regulations

The Consumer Financial Protection Bureau has proposed amendments to its Freedom of Information Act regulations, as outlined in a notice published today in the Federal Register.  By this same notice of proposed rulemaing, CFPB seeks to amend its Touhy regulations, as well as its Dodd-Frank Act rules concerning the protection of confidential information.  Comments must be received on or before October 24, 2016.

Q&A: A gender bender from the Land of Lincoln

Q. I am curious about the gender of interviewed candidates for leadership roles in a local school district.  Is this protected under exemption 6?

A.  Exemption 6 refers to the personal privacy exemption of the federal FOIA, which is not applicable to a local district. The Illinois FOIA, however, contains a similar privacy exemption in section 7(1)(c).  In my view, a plausible argument can be made that disclosure of the requested records would serve the public interest by shedding light on the school's hiring practices.  But the school district must also examine whether disclosure could tend to identify any rejected candidates, whose personal privacy interests are more than minimal.  Although I am not in a position to know whether disclosing the information you seek could be used to identify any rejected candidate, one study has shown that 87% of the U.S. population is identifiable by three items alone:  date of birth, gender, and zip code:  http://dataprivacylab.org/projects/identifiability/paper1.pdf.