FOIA News: State Dep't seeks FOIA supervisor

The State Department announced this week that it is looking to hire a Supervisory Government Information Specialist to oversee responses regarding FOIA appeals and FOIA litigation cases.  The application deadline is October 19, 2016.  See the hiring announcement here. 

FOIA News: White House Coordinated on Clinton Email Issues, New Documents Show

White House Coordinated on Clinton Email Issues, New Documents Show

By Byron Tau, Wall Street Journal, Oct. 7, 2016

Newly disclosed emails show top Obama administration officials were in close contact with Hillary Clinton’s nascent presidential campaign in early 2015 about the potential fallout from revelations that the former secretary of state used a private email server.

Their discussion included a request from the White House communications director to her counterpart at the State Department to see if it was possible to arrange for Secretary of State John Kerry to avoid questions during media appearances about Mrs. Clinton’s email arrangement.

In another instance, a top State Department official assured an attorney for Mrs. Clinton that, contrary to media reports, a department official hadn’t told Congress that Mrs. Clinton erred in using a private email account.

The previously unreported emails were obtained by the Republican National Committee as part of a Freedom of Information Act lawsuit seeking records of Mrs. Clinton’s time in office. 

Read more here.

Q&A: Getting into the weeds

Q.  The EPA denied my request for the "other" ingredients on a generic Glyphosate product label.  I was injured by this product, but EPA has determined that the information is confidential.  

A.  A product's formula may very well be protected under Exemption 4 as a trade secret or confidential business information.  A trade secret, for example, has been held by the D.C. Circuit to mean "a secret, commercially valuable plan, formula, process, or device that is used for the making, preparing, compounding, or processing of trade commodities and that can be said to be the end product of either innovation or substantial effort."  Public Citizen Health Research Group v. FDA, 704 F.2d 1280, 1288 (D.C. Cir. 1983).

For additional guidance on Exemption 4, you might wish to consult the U.S. Department of Justice's Guide to the Freedom of Information Act.   

FOIA News: Dep't of Energy scientists react to "Stranger Things"

Stranger Things: Private E-mails Reveal What Evil Scientists Really Think of the Netflix Show

Turns out the sci-fi smash might not be that far from the truth.

By Joanna Robinson, Vanity Fair, Oct. 6, 2016

Even Netflix’s notoriously secret ratings info, we may never know how many people actually watched Stranger Things over the summer. But thanks to the Freedom of Information Act, we do know that members of the Department of Energy were watching—and, according to a stack of released e-mails, they had a lot to say about the “sinister (yet awesome)” way their organization was portrayed. It’s worth noting that D.O.E. employees, like the rest of us, have spoiler concerns.

Read more here.  

Court opinions issued Oct. 5, 2016

STS Energy Partners LP v. FERC (D.D.C) -- awarding attorney's fees to plaintiff despite its commercial interest in the records, because the public derived a benefit from disclosure and the agency did not have a reasonable basis for withholding the records that it initially refused to disclose. 

Elec. Privacy Info. Ctr. v. DOJ (D.D.C.) -- denying plaintiff's motion for attorney's fees after finding that plaintiff's lawsuit was not the catalyst for the Criminal Division's release of records.

Summaries of all opinions issued since April 2015 available here.

FOIA News: DOJ recap of Chief FOIA Council's meeting

CFO COUNCIL RECEIVES FEEDBACK ON “RELEASE TO ALL” POLICY AT SECOND MEETING

Office of Information Policy, FOIA Post, Oct. 4, 2016

The Chief FOIA Officers (CFO) Council held its second meeting on September 15, 2016. OIP Director and CFO Council co-chair Melanie Ann Pustay opened the meeting by providing updates about recently-issued OIP guidance and resources related to the FOIA Improvement Act of 2016. She also provided an overview of the universal FOIA portal, the first phase of which will be launched by the end of 2017.

The majority of the meeting consisted of discussion about the “release to one is a release to all” policy that would direct agencies to proactively post online their FOIA responses. After the CFO Council meeting on July 23, 2016, OIP circulated a questionnaire to all agency CFOs seeking their feedback on the feasibility, timeline, and any other concerns associated with implementing a “release to one is a release to all” policy. Director Pustay summarized agency responses to the questionnaire, which overall indicated that many agencies could begin implementing such a policy within 60 days of January 1, 2017 with most agencies preferring an incremental approach to full implementation. 

Read more here.

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).