Court opinions issued Oct. 4, 2016

Kaye v. USCIS  (D.D.C.) -- granting government's unopposed summary judgment motion with respect to 85 pages of immigration records released in full or in part after plaintiff filed his lawsuit.

Judicial Watch v. NARA (D.D.C.) -- ruling that the National Archives and Records Administration properly withheld an independent counsel's draft indictments of Hillary Clinton pursuant to Exemption 7(C) and Exemption 3, in conjunction with Rule 6(e) of Federal Criminal Procedure.  

Summaries of all opinions issued since April 2015 available here.

FOIA News: DOJ does not seek Supreme Court review of private email decision

Obama administration won't fight court ruling on private email

By Josh Gerstein, Politico, Oct. 5, 2016

The Obama administration has passed up its last chance to overturn a groundbreaking federal appeals court ruling that messages in government officials' private email accounts can sometimes be subject to disclosure under the Freedom of Information Act.

The Justice Department's decision not to challenge the ruling leaves it in place as a binding precedent in dozens of pending lawsuits involving emails kept on Hillary Clinton's private email server and on private accounts maintained by her top aides.

The D.C. Circuit Court of Appeals issued its decision July 5, giving Justice until late August to seek rehearing before the appellate court's full bench and until earlier this week to seek review at the Supreme Court.  Neither step was taken, leaving the D.C. Circuit ruling as precedent available to any FOIA requester in the nation.

A Justice Department spokeswoman confirmed that no petition was filed with the high court, but offered no comment on why the case wasn't pursued.

Read more here.

FOIA News: Gov't and immigration plaintiffs settle claims over FOIA backlog

Feds Settle With Immigration Attorneys Over FOIA Backlog

By Maria Dinzeo , Courthouse News Service, Oct. 4, 2016

Immigration attorneys and their clients have settled claims with U.S. Customs and Border Protection over thousands of unanswered Freedom of Information Act requests.    

Led by Glendale attorney Meredith Brown, a proposed class of immigration lawyers said that by the end of fiscal year 2013, the agency had a backlog of nearly 38,000 FOIA requests that had been pending for more than the 20 days permitted by the law.

They said their requests had been pending for anywhere between 5 and 25 months, and the agency's failure to respond affects the proposed class's ability to obtain legal permanent residency in the United States. 

At a motion for class certification hearing in October 2015, U.S. District Judge James Donato said the plaintiffs needed more proof that the department engaged in a pattern and practice of illegally delaying FOIA requests.

 The parties began settlement talks in March 2016.

 Stacy Tolchin, a Los Angeles lawyer who represents the plaintiffs, confirmed the settlement Tuesday.

[Note: the name of the case is Brown v. U.S. Customs & Border Patrol, 15-cv-01181-JD (N.D. Cal.)]

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.