FOIA News: Judge Orders FERC to Pay Gates Brothers’ Attorney’s Fees in FOIA Dispute

Judge Orders FERC to Pay Gates Brothers’ Attorney’s Fees in FOIA Dispute

By Ted Caddell, RTO Insider, Oct. 10, 2016

FERC has been ordered to pay attorney’s fees for stonewalling an energy trading company’s request for documents under the Freedom of Information Act.

While the award — $60,168 — was not huge, the fact that a U.S. District Court judge ruled against FERC was unusual.

Kevin and Rich Gates, acting as principals of the energy trading company STS Energy Partners, filed FOIA requests seeking documents related to investigations by FERC’s Office of Enforcement into two other energy trading companies, Oceanside Energy and Black Oak Energy.

The Gates brothers, who have been involved in a very public battle with FERC over market manipulation allegations against one of their other companies, Powhatan Energy Fund, said in filings that they wanted the documents “to shine light on FERC’s recent and punitive efforts against small power market traders for engaging in legal and ubiquitous activity.” They have accused FERC of withholding information before. (See Gates, Powhatan Say FERC Enforcers Didn’t Share Crucial Info.)

Read more here.

[Copy of court case here]

FOIA News: How a video game about sheep exposes the FBI's broken FOIA system

How a video game about sheep exposes the FBI's broken FOIA system

By Aaron Sankin, The Daily Dot, Oct. 11, 2016

In April, the Daily Dot filed a Freedom of Information Act (FOIA) request with the FBI about the game. The request asked for “all documents—specifically memos, email correspondence, and budgets—around the development, release, and public reception of the FBI's Slippery Slope game. It’s the one with the sheep.”

After about four months of back and forth with the agency, the Daily Dot finally received a concrete update about the status of our request. The search for records is currently ongoing, but the agency estimates it will be concluded in February 2018.

To recap: It’s going to take almost two full years to pull together the information on how a video game parable about a sheep ended up on the FBI’s website. According to activists who have spent years fighting for greater transparency at the FBI, this delay is the just par for the course.

Read more here.

FOIA News: Clinton campaign wanted to subject Congress to FOIA

Leaked Clinton Email Shows Campaign Wanted All Lawmakers To Make Their Emails Public

Shockingly, nobody seems to have taken her up on this idea.

By Jessica Schulberg, Huffington Post, Oct. 10, 2016

Hillary Clinton’s campaign team once considering trying to recruit an ally on Capitol Hill to introduce a bill that would end the Freedom of Information Act exemption that applies to members of Congress.

The ideal candidate, senior spokesman Jesse Ferguson suggested in a March 2015 email conversation released by Wikileaks on Monday, would be a person in the House of Representatives who is “either an HRC advocate OR someone who wants to make a name for themselves on good government/transparency (and doesn’t mind pissing some people off).”

They couldn’t find a member of the House who had pushed such legislation in the past. It’s unclear if they ever directly asked a member to introduce the bill. The Clinton campaign did not immediately respond to request for comment, but it appears that if they did make the ask, they were unable to find a member who was willing to make a public push to end FOIA exemptions for lawmakers.

Read more here.

FOIA News: FBI releases 8 pages on Trump's father

FBI releases thin file on Donald Trump's father, Fred

By Josh Gerstein, Politico, Oct. 8, 2016

The FBI has released a small set of records on Donald Trump's father Fred, showing a fleeting interest at the bureau in the elder Trump's campaign donations and hints of a concern related to organized crime.

However, the FBI file is all of eight pages in length, suggesting the bureau never subjected Fred Trump to any serious scrutiny prior to his death in 1999.

Read more here.  

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.