FOIA News: Washington Times Editorial Board on the State Department's FOIA Backlog

Slow-walking in Foggy Bottom

By Editorial Board, Washington Times, Sept. 13, 2016

Mr. Kennedy is overseeing an explosion of FOIA requests that has left the department swamped with a backlog of 30,000 cases. Compliance rules require a response within 20 days but because of the backlog, the department is taking more than 500 days to answer requests. Documents pertaining to foreign governments require review for sensitive information, which can result in reclassification after the fact, a practice which Hillary argues contributed to the criticism of her handling of classified documents.

The State Department has urged Congress to exempt material dealing with foreign governments from FOIA requests to end the need to review sensitive material prior to its release. If there is anything to be learned from the slippery behavior that has plagued Foggy Bottom in the wake of Mrs. Clinton’s shoddy leadership, it’s that Americans want more transparency, not less. Most of all they want leaders who don’t lie to them.

Read more here.

Q&A: certified or certifiable?

Q.   I am in receipt of a FOIA request where the requester is seeking a copy of the certificate list for a vacancy announcement that was posted.  Please note the requester did not apply for this position.  Is he eligible for a redacted copy with the list of eligibles? 

A.  If anyone has been hired for the position, the agency could release the name of that employee.  Disclosing the name or personal identifying information of job applicants who have not been hired, however, would invariably constitute a clearly unwarranted invasion of their privacy.  

FOIA News: FBI to Congress: File FOIA request for Clinton email files

FBI to Congress: File FOIA request for Clinton email files

By Sarah Westwood, Washington Examiner, Sept. 12, 2016

A representative of the FBI suggested to members of the House Oversight Committee during a hearing Monday that they file a Freedom of Information Act request for documents related to the bureau's investigation of Hillary Clinton's private email use.

Jason Herring, acting assistant director for congressional affairs at the FBI, argued that "the remainder of the 302s will come out through the FOIA process" when pressed by Rep. Trey Gowdy, R-S.C., to publish summaries of witness interviews, known as 302s, from the FBI's year-long probe of Clinton and her associates.

"Since when did Congress have to go through FOIA to obtain 302s?" Gowdy said. "You have given me the summary of a summary of an interview."

Read more here.

FOIA News: ICYMI, OIP updates its guidance on FOIA regulations

UPDATED FOIA REGULATION TEMPLATE AND GUIDANCE NOW AVAILABLE

U.S. Dep't of Justice, FOIA Post, Sept. 7, 2016

Today OIP released an updated version of its Guidance for Agency FOIA Regulations, along with an updated FOIA Regulation Template.  These resources were first issued in March 2016.  OIP has updated them to take into account changes made to the FOIA by the FOIA Improvement Act of 2016 and by recent court decisions.    

As described in OIP’s guidance, while many of the FOIA’s requirements are contained directly in the statute and do not need implementing regulations, there are areas where the FOIA specifically requires each agency to publish regulations and still other areas where regulations are permitted.  Moreover, there are aspects of FOIA administration that can be addressed in FOIA regulations as a matter of good practice.  

The updates to the guidance and accompanying template for agency FOIA regulations include: 

• Notifications to requesters of assistance from FOIA Public Liaisons and the Office of Government Information Services,
• Ninety-day minimum time period to file an administrative appeal,
• Procedures for dispute resolution, and
• Limitations on assessing certain fees and the exceptions to those limitations.

The updates also reflect recent judicial decisions of the Court of Appeals for the District of Columbia Circuit pertaining to two fee categories, representative of the news media and educational institution. 

OIP encourages all agencies to consult the guidance and sample language from the template to the extent feasible as they update their FOIA regulations.  OIP will continue to update these resources as needed to reflect changes in law and policy. 

Court opinions issued Sept. 9, 2016

Am. Farm Bureau Fed'n v. EPA (8th Cir.) -- reversing district court's decision that plaintiffs lacked standing to bring a "reverse" FOIA suit to prevent disclosure of certain information about their concentrated animal feeding operations, and that the information at issue was not exempt from mandatory disclosure under Exemption 6.  In analyzing the applicability of Exemption 6, the Eighth Circuit rejected the EPA's argument that the information's availability through various other public sources diminished the plaintiffs' privacy interests. 

Although a requester might be able to find the information he seeks on a website or in a State's publicly available files, the agency's comprehensive listing . . . substantially increases the public visibility and accessibility of that information. The agency's release of the complete set of data on a silver platter, so to speak, eliminates the need for requesters and others to scour different websites and to pursue public records requests to create a comprehensive database of their own.  If the information were so easily accessible, then it is passing strange that the parties would engage in protracted and expensive litigation to secure it through the Freedom of Information Act.  See Reporters Comm., 489 U.S. at 764.

The Eighth Circuit remanded the case for the district court to determine whether EPA is prohibited by any independent source of authority from making a discretionary release of the information at issue.

Brozzo v. U.S. Dep't of Educ. (N.D.N.Y.) -- ruling that the agency did not show that student loan records possessed by another entity were not "agency records" in light of agency regulation that authorized agency to copy and inspect them. 

Summaries of all opinions issued since April 2015 available here.  

FOIA News: Court approves timetable for release of Clinton's schedules

Judge OKs plan to release Clinton schedules before election

By Josh Gerstein, Politico, Sept. 9, 2016

A federal judge has approved a plan for the State Department to finish releasing its collection of Hillary Clinton's schedules during her tenure as secretary of state before the November election.

U.S. District Court Judge Richard Leon signed off on a joint proposal from State and The Associated Press to complete production of Clinton's schedules and so-called mini schedules by October 17, with an interim batch due by September 29.

In exchange for accelerating the processing of the schedules, AP agreed to defer receiving records about a top aide to Clinton, former Deputy chief of staff Huma Abedin. State will resume processing those records after the schedules are worked through the system.

Read more here. 

Court opinions issued Sept. 7, 2016

Shapiro v. Dep't of Justice (D.D.C.) -- deciding that (a) the FBI performed an adequate search for records pertaining to Aaron Swartz; (b) the agency's explanation for its use of Exemption 3 to withhold federal grand jury records was conclusory; and (c) the agency provided insufficient information to permit the court to determine whether disclosure of certain law enforcement records would cause harms protected by Exemption 7(E).

Attkisson v. U.S. Dep't of Justice (D.D.C.) -- concluding that the FBI conducted an adequate search for records concerning plaintiff Sharyl Attkinson.

Summaries of all opinions issued since April 2015 available here.  

FOIA News: GAO publishes report on FOIA litigation costs

On September 8, 2016, the U.S. Government Accountability Office (GAO) published a report that examined FOIA litigation-related costs incurred by federal agencies for lawsuits in which the plaintiffs substantially prevailed.  Of 1,672 lawsuits decided between 2009 and 2014, GAO identified 112 lawsuits in which the plaintiff substantially prevailed.  GAO reviewed cost data provided by the Department of Justice and other agencies, but it was not able to fully determine the litigation-related costs for these 112 lawsuits. 

Read the GAO report here.  

FOIA: National Security Archives' Nate Jones weighs in on Vox and government emails

Against Transparency?

By Nate Jones, Unredacted, Sept. 7, 2016

His argument that “Email isn’t mail” –along with being incorrect– is also not novel.  It is the exact argument made by the Reagan Administration to the National Security Archive as it attempted to delete all all traces of its emails before turning the keys to the White House over to the H.W. Bush Administration in January 1989.  Attempting to justify deletion of the email, the responsible official at NARA told the National Security Archive that federal emails were akin to telephone messages slips, not worthy for preservation.  Fortunately, for all journalists not named Yglesias, U.S. District Court judge Barrington D. Parker rejected this assertion, ruled for the Archive and against Reagan’s acting Attorney General John Bolton (yes, that one), and granted the restraining order that preserved the Reagan Administration’s emails from deletion.  After years of legal battles with both Democratic and Republican administrations, the National Security Archive eventually won the preservation of several hundred thousand White House emails from the Reagan presidency, nearly a half million from the Bush-41 term, 32 million from Clinton, and an estimated 220 million from Bush-43.  Our settlement with the Obama administration ensures that all of his White House emails (along with Blackberry messages) will also be preserved and per the Presidential Records Act, will be available for FOIA requests as early as five years after he leaves office.

So, to be clear, Yglesias’s argument is not a new, provocative idea.  There has been much discussion about the topic, and there is clear law and court precedent that emails (and text messages, and Slack messages, and Gchats) are firmly established federal records. It’s the law of the land.  In fact, the US National Archives is currently completing work to ensure that each and every federal agency has a system in place by December 2016 to  “manage all email records in an accessible electronic format” –so that they can more effectively be preserved and released  in response to FOIA requests.

Read more here.

FOIA News: Congressman Chaffetz blames Clinton for State Dep't FOIA delays

Republican accuses Clinton of State Department records mess

By Richard Lardner, The Associated Press, Sept. 8, 2016

WASHINGTON (AP) — A top House Republican is accusing Hillary Clinton of making a "mess" of records management at the State Department that has frustrated requests for information from Congress, the media and the public.

Congressman Jason Chaffetz of Utah chairs the House Oversight and Government Reform Committee.  Chaffetz said at a hearing Thursday that Clinton "conveniently created" a chaotic system that is costing millions of dollars to repair.

Chaffetz pointed out that The Associated Press had to go to court to try to obtain detailed planning schedules from Clinton's four-year tenure as secretary of state.

Patrick Kennedy is undersecretary of state for management. Kennedy says the agency is improving its records management but continues to struggle with the heavy volume of open-records requests that it gets.

Hearing testimony and video available here.