FOIA News: Reporters and ex-OGIS director chew on the FOIA

As government records move from paper to email to channels like Slack, how should FOIA keep up?

“I have a love-hate relationship with FOIA.”

By Shan Wang, NiemanLab,  Sept. 30, 2016

The late Supreme Court justice Antonin Scalia once called the Freedom of Information Act “the Taj Mahal of the doctrine of unanticipated consequences, the Sistine Chapel of cost-benefit analysis ignored.”

For investigative reporters — and increasingly, community groups and even just interested individuals — FOIA is often the single-most useful tool at their disposal.  But even in 2016, as the FOIA law turns 50 years old and as government communications move onto digital platforms, reporters continue to be frustrated by delays and stonewalling, and officials continue to feel overwhelmed by the volume of requests coming their way.  Both sides of the exchange are affected by underdeveloped technical infrastructure for finding, sorting, and delivering records.

In a breakfast discussion at Harvard’s Shorenstein Center on Friday morning, two reporters and the former director of the Office of Government Information Services tried to clear up misunderstandings around FOIA, how to improve the records request process for both journalists and government workers (one obvious answer: invest more money), and how to make FOIA effective in a world of electronic communication.

Read more here.

Court opinions issued Sept. 27, 2016

Burwell v. Exec. Office for U.S. Attorneys (D.D.C.) -- concluding that agency performed a reasonable search for grand jury records pertaining to plaintiff's criminal case and that it properly withheld the names of third parties pursuant to Exemption 7(C).   

Hall & Assocs. v. EPA (D.D.C.) -- denying plaintiff's motion for reconsideration with respect to adequacy of EPA's search because plaintiff "received the documents it originally sought, does not seek additional documents or searches, already stipulated to the adequacy of both of EPA's searches, and articulates no extraordinary or manifest injustice;" further denying plaintiff's motion for attorney fees after finding that the delayed production of documents was due to plaintiff's "intransigence." 

Am. Civil Liberties Union v. DOJ (S.D.N.Y.) -- ruling that: (1) DOJ conducted reasonable searches for certain policy records on warrantless surveillance; (2) with one exception,  the National Security Division properly withheld records under the attorney work product privilege; and (3) the Executive Office for U.S. Attorneys would be granted a further opportunity to justify its withholdings under the attorney work product privilege.

Summaries of all opinions issued since April 2015 available here.

FOIA News: GSA political appointee delayed FOIA requests

Obama Appointee Hid Details From Media On Extravagant Gov’t Conference

By Luke Rosiak, The Daily Caller, Sept. 29, 2016

One of President Barack Obama’s political appointees delayed release of embarrassing information related to the General Services Administration’s (GSA) infamous champagne-soaked employee “team-building” conference in Las Vegas in 2012, according to a newly released report by the agency’s Inspector General.

The withheld information included emails about massive employee bonuses, and videos, including one where GSA employees pretended to be monkeys. The agency punished the employee who told people that the videos were wasteful was demoted to GSA’s daycare center after speaking out.

Officials then invoked a false legal justification to stonewall a public information request for the videos for more than a year.

The usual process in federal agencies is to have a team of trained career civil servants handling Freedom of Information Act responses. But at GSA, a single political appointee, Special Adviser Bianca Oden reviewed all FOIA requests from journalists after career employees completed their redactions.

And on several of the most politically sensitive requests, she appeared to let them sit on her desk for nearly a year without taking any actions. The politicized control of the FOIAs began soon after GSA was embarrassed by reports on its wildly lavish conference, for which a GSA manager later went to jail.

Read more here.

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.