Q&A: As Time Goes By

Q.    I am researching a crime that occurred in Vietnam in 1970.  The victim was a civilian.  The Army has disclosed records, redacted substantially using exemptions (b)(6) and (b)(7)(C). Since these records are 46 years old, does FOIA caselaw provide a greater burden on the government to justify non-disclosure?  Many records are witness statements, interviews, investigative reports, and medical records.

A.  The passage of time does not heighten the burden of proof that the government must carry with respect to Exemptions 6 and 7(C).  Indeed, DOJ has opined that "[a]s a general rule, the passage of time serves to increase an individual's privacy interests, even in personal information that was once publically [sic] available."  U.S. Dep't of Justice, Guide to the Freedom of Information Act, Exemption 6, p. 36 (last updated Jan. 10, 2014).    

If you are familiar with any of the third parties involved, it might be worthwhile to investigate whether any are deceased, which would likely result in the disclosure of additional information.  An agency may presume that an individual who would be 100 years old at the time of the request is no longer alive.  See Schrecker v. DOJ, 349 F.3d 657, 662-65 (D.C. Cir. 2003) (upholding FBI's 100-year rule).  Keep in mind that that the D.C. Circuit requires agencies to take basic steps to investigate the life status of third parties.  See Johnson v. EOUSA, 310 F.3d 771, 775-76 (D.C. Cir. 2002).  

FOIA News: Drafts of Whitewater indictment for Hillary Clinton are exempt, court rules

Judge won't release drafts of Hillary Clinton Whitewater indictment

By Josh Gerstein, Politico, Oct. 4, 2016 

A federal judge has rejected a conservative group's lawsuit demanding the release of drafts of a criminal indictment of Hillary Clinton prosecutors prepared, but never issued, during the Whitewater investigation in the 1990s.

U.S. District Court Judge Reggie Walton ruled Tuesday that Clinton's "substantial privacy interest" outweighed any public interest in disclosure and that the material was protected from disclosure by a court rule enforcing grand jury secrecy.

Read more here.

Q&A: Liar, liar, pants on fire?

Q.  If a local fire department receives federal grant funds, is it bound to follow the federal FOIA?  Can the FOIA request be for "information" that isn't printed on a document or recorded on some other type of record, but is known by government employees as organizational knowledge?  If the fire department is telling taxpayers that it needs new furniture and a bigger administration building, can taxpayers submit a FOIA request to personally view the current structure and furniture and create their own photographic document, thus obtaining the FOIA requested information? 

A.  Receiving federal funds would not obligate a local fire department to follow the federal FOIA. The department may be subject to the state's public records law, however.  Further, the federal FOIA is not an "information" law, despite its title.  The FOIA applies to agency records only.  A federal agency is not required to answer questions, create new records, or provide explanations about existing records in response to a FOIA request.  Nor does the federal FOIA require an agency to accommodate a requester's interest in taking photographs of federal property.  A state public records law is unlikely be more helpful.  

FOIA News: Reporters Committee launches “FOIA Wiki” beta

Reporters Committee launches “FOIA Wiki” beta

Reporters Committee for Freedom of the Press, Oct. 3, 2016

The Reporters Committee for Freedom of the Press has launched a beta of the FOIA Wiki (www.foia.wiki), a collaborative and evolving digital resource on the federal Freedom of Information Act. The FOIA Wiki is part legal guide, part community space for sharing information that aims to serve as a central hub on all manner of issues surrounding FOIA as the law celebrates its 50th anniversary.

Using a “wiki” format to encourage contributions from different persons and organizations, the FOIA Wiki includes explanations of FOIA’s provisions and exemptions, provides places for reporters and members of the public to share strategies and tips, and intelligently categorizes information about caselaw and federal agencies to promote the “right to know.” It complements the Reporters Committee’s existing public records guides, such as the Open Government Guide and will evolve alongside changes to the statute and court cases interpreting it.

“This is an exciting first step towards creating a powerful, community-based FOIA resource,” said Adam Marshall, the Knight Foundation Litigation Attorney at the Reporters Committee. “Bringing together the expertise of reporters, the open government community, and everyone who is passionate about FOIA benefits all of us who rely on this law to hold the government accountable.”

Read more here.

See the FOIA Wiki here.

Court opinions issued Sept. 30, 2016

Cameranesi v. DOD (9th Cir.) -- determining that the names of foreign students at the Western Hemisphere Institute for Security Cooperation are protected by Exemption 6, reversing the decision of U.S. District Court of the Northern District of California.       

Byers v. U.S. Tax Court (D.D.C.) -- holding that the United States Tax Court is exempt from FOIA because it is a court, not an agency.

Carter v. USDA (W.D. Ark.) -- finding that plaintiff exhausted his administrative remedies with respect to one of three requests and referring matter back to U.S. Magistrate Judge for further proceedings. 

Landmark Legal Foundation v. Dep't of Justice (D.D.C.) -- ruling that plaintiff's request for records "evincing the use of" personal email accounts and other electronic communication and social media platforms to conduct government business was overly burdensome and not reasonably described; further dismissing plaintiff's claim concerning agency use of alias emails, because plaintiff failed to appeal the agency's initial response.

Pub. Emps. for Envtl. Responsibility v. EPA (D.D.C.) -- concluding that the agency properly withheld four documents pursuant to the attorney-client privilege and one document under Exemption 6, and that the agency failed to carry its burden with respect to its remaining Exemption 5 withholdings.

Pub. Emps. for Envtl. Responsibility v. EPA Office of the Inspector Gen. (D.D.C.) -- deciding that the EPA properly relied upon the attorney-client privilege to withhold memoranda, including factual findings, written by agency investigators to agency lawyers in order to secure legal advice regarding the criminal liability of an outside party.

Summaries of all opinions issued since April 2015 available here.

Court opinion issued Sept. 29, 2016

Judicial Watch v. DHS (D.D.C.) -- dismissing as moot plaintiff's claim that DHS improperly withheld records responsive to 19 requests, because the parties jointly represented that all non-exempt responsive records had been produced; further ruling that plaintiff failed to establish that DHS had a "policy and practice" of failing to abide by FOIA response deadlines.

Summaries of all opinions issued since April 2015 available here.

FOIA News: Judge: State Department need not seek records of Clinton's private phone

Judge: State Department need not seek records of Clinton's private phone

By Josh Gerstein, Politico, Sept. 30, 2016

A federal judge ruled Friday that the State Department was under no obligation to look outside its own files for records of Hillary Clinton's phone calls on the night of the deadly Benghazi attacks.

U.S. District Court Judge Rosemary Collyer said State's searches of its own documents and databases were sufficient to fulfill a Freedom of Information Act brought by Veterans for Strong America, a nonprofit group promoting national defense.

"Plaintiffs offer no basis to require additional efforts to obtain telephonic records, about which they speculate, since State has no FOIA obligation to make that attempt," wrote Collyer, an appointee of President George W. Bush.

Read more here.

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.