FOIA News: More Clinton emails to be released before election

State Dept. to process 3,000 pages of Clinton emails before election

The deal adds to the 'drip, drip, drip,' but many messages may come out just days in advance of Election Day.

By Josh Gerstein, Politico, Sept. 28, 2016

The State Department has agreed to process for public release in advance of the election almost 3,000 pages of Hillary Clinton's emails recovered by the FBI during their recently-closed investigation into Clinton's private server arrangement.

A federal judge previously ordered State to review 1,050 pages of the Clinton messages before the election. The deal that State and Vice News reporter Jason Leopold submitted to two other federal judges Wednesday will add 1,850 pages to those already scheduled for processing.

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The release of the records seems certain to provide more unwelcome "drip, drip, drip" for the Clinton campaign, but many of the messages could emerge so close to the election that they'll be caught up in the last-minute frenzy of coverage and back-to-back political events.

The new agreement calls for the releasable portion of the additional 1,850 pages to be made public on State's website on Nov. 3. The existing schedule, in a case brought by conservative group Judicial Watch, calls for processing sets of 350 pages for posting on each of three days: Oct. 7, Oct. 21 and Nov. 4.

Read more here. 

Court opinion issued Sept. 23, 2016

Immigrant Def. Project v. DHS (S.D.N.Y.) -- ruling that the government failed to perform an adequate search because: (1) the search terms employed were in the plural form only, not singular; (2) the agency did not search for all records "related to" certain press releases; and (3) the agency did not assist plaintiffs to narrow their original request.  

Summaries of all opinions issued since April 2015 available here.

FOIA News: USAID proposes new FOIA regulations

The United States Agency for International Development has proposed to revise its FOIA regulations, as set forth in a notice published in today's Federal Register.   

The deadline to submit comments is November 25, 2016.  

FOIA News: Deal nears to speed release of Hillary Clinton emails

Deal nears to speed release of Hillary Clinton emails

By Josh Gerstein, Politico, Sept. 26, 2016

A potential compromise is in the works that could result in more of Hillary Clinton emails recovered by the FBI being made public before the election.

Last week, a judge ordered the processing under the Freedom of Information Act of a relatively meager 1,050 pages of the FBI-found emails before Election Day. Government lawyers say there are about 5,600 Clinton, work-related emails the FBI turned over to State Department beginning in July, although some are duplicates of records already processed and released.

However, during a court hearing in a separate FOIA lawsuit Monday, another judge pushed for a deal that could accelerate the release of those messages, perhaps three-fold in advance of the election.

Read more here.

Court opinions issued Sept. 22, 2016

Sept. 22, 2016

Wadelton v. Dep't of State (D.D.C.) -- granting government's renewed motion for summary judgment after concluding that the agency's supplemental searches were adequate and that its withholdings were proper under Exemption 5 (attorney work product and deliberative process privilege). 

The James Madison Proj. v. DOJ (D.D.C.) -- granting summary judgment to government on all but one count concerning requests for records about the book No Easy Day: The Firsthand Account of the Mission that Killed Osama Biden Laden.  Of note, the court held that plaintiff's fax confirmation page was insufficient evidence to counter the U.S Navy's sworn declaration that it had never received plaintiff's request.  

Ford v. DOJ (D.D.C.) -- determining that the FBI and the Executive Office for United States Attorneys conducted reasonable searches for records concerning plaintiff's bank robbery conviction, and that the agencies properly withheld certain information under Exemptions 3, 7(C), 7(D), and 7(E).

Scholl v. Various Agencies of the Fed. Gov't (D.D.C.) -- dismissing suit because plaintiff had waived his right to obtain the requested records as a condition of two plea agreements. 

Summaries of all opinions issued since April 2015 available here.  

Court opinions issued Sept. 21, 2016

Gabrion v. U.S. Dep't of Justice (S.D. Ind.) -- holding that the Federal Bureau of Prisons properly relied on Exemptions 6, 7(C), 7(E), and 7(F) to withhold certain records concerning plaintiff, a death row inmate who sought records concerning his prison custody. 

Isiwele v. U.S. Dep't of Health & Human Servs. (D.D.C.) -- ruling that: (1) the Centers for Medicare & Medicaid Services conducted an adequate search for records concerning certain Medicare claims and that the agency properly withheld certain records pursuant to Exemption 6 & 7(C); and (2) the Executive Office for United States Attorneys performed a reasonable search for personnel records of certain employees and that the agency properly withheld those records pursuant to Exemption 6.

Lewis v. Dep't of the Army (S.D. Ga.) -- dismissing claim for injunctive relief because plaintiff received all requested documents; dismissing claim for $1 million damages because FOIA does not permit monetary awards; and dismissing request for the appointment of Special Counsel because none of the statutory requirements were met (5 U.S.C. § 552(a)(4)(F)(i)).

Summaries of all opinions issued since April 2015 available here.  

Court opinions issued Sept. 20, 2016

Sea Shepherd Conservation Soc'y v. IRS (D.D.C.) -- finding that all but one of the agency's searches for records concerning plaintiff was adequate; that the agency's Glomar response concerning whistleblower records was improper because the agency had already acknowledged existence of records; and that the agency properly invoked Exemption 3 (26 U.S.C. § 6103) and Exemption 7(D).

Pike v. DOJ (D.D.C.) -- ruling that the government properly withheld an audio recording of plaintiffs in its entirety under Exemption 7(A), but that waived its right to withhold the portion of the transcript that it had placed into the public domain.

Blank Rome v. Dep't of the Air Force (D.D.C.) -- determining that the Air Force conducted an adequate search for records concerning the termination of a contract and that all but two of its redactions from three disputed documents were proper under Exemption 5.

Johnson v. FBI (E.D. Pa.) -- granting government's motion for reconsideration after determining that FBI's supplemental declarations established the propriety of the agency's withholdings under Exemptions 3, 5, 6, 7(C), 7(D), and 7(E).

Citizens for a Strong New Hampshire v. IRS (D.N.H.) -- denying plaintiff's motion for attorney's fees after concluding that plaintiff's lawsuit was not the proximate cause of agency's release of records and that plaintiff did not substantially prevail by virtue of agency's supplemental search that yield no additional records. 

Summaries of all opinions issued since April 2015 available here.  

FOIA News: OGIS and DOJ announce training sessions

The Office of Government Information Services announced today that it will host a dispute resolution training session for FOIA professionals on October 18, 2016.  The free day-long session will be at the National Archives in downtown Washington, DC, location.  Read more here. 

At the same time, the Department of Justice's Office of Information Policy unveiled a four-course training schedule for the first quarter of fiscal year 2017:  (1) Annual FOIA Report Refresher Training, October 11, 2016;  (2) Freedom of Information Act Litigation Seminar, October 24, 2016;  (3) Introduction to the Freedom of Information Act, November 7, 2016; and (4) Chief FOIA Officer Report Refresher Training, December 12, 2016.  Read more here.  

FOIA News: State Dep't FOIA office remains understaffed, according to court filing

State Dept. slow to hire open records staffers despite flood of requests

By Julian Hattem, The Hill, Sept. 21, 2016

The State Department has faced a deluge of open records requests and lawsuits in recent months, many of them stemming from former Secretary Hillary Clinton’s use of a private email server throughout her tenure at the department.

But despite the demands, the department has been slow to hire new staffers, according to a court filing that was made as part of an open records lawsuit launched by the Republican National Committee (RNC).

This year, the State Department has been authorized to hire 25 new full-time staffers to work on processing requests under the Freedom of Information Act (FOIA).

But only one has been hired, Obama administration lawyers disclosed in their filing this week. 

And only six other postings have been advertised on the government’s official jobs portal, suggesting that 18 of the openings have not even been made public.

Read more here.

Q&A: Carry me home to Virginia

Q.  Does the FOIA apply to homeowners associations in Virginia?

A.  An HOA is not likely to be subject to Virginia's FOIA, which applies to public (not private) bodies.  Similarly, the federal FOIA applies to government agencies, not private entities.  Please note that Virginia real estate laws might provide access to certain HOA records.  We can only recommend that you consult with a real estate lawyer licensed in Virginia for authoritative legal advice.