FOIA News: Clinton campaign planned to blitz GOP with FOIA requests

linton Team Complains About FOIA Congressional Exemption Passed By Democrats

By Kerry Picket, Daily Caller, Oct. 17, 2016

Hillary Clinton’s campaign complained internally that Congress is exempt from the Freedom of Information Act, so they planned to recruit Washington lawyer Abbe Lowell to send FOIA requests to members of Congress who were investigating Clinton’s emails.

The law, with its congressional exemption, was passed 50 years ago by a Democratic Congress and signed by a Democratic president.

According to a March 5, 2015 email that appeared on Wikileaks as a result of a reported hack of John Podesta’s online communications, Clinton advisor Phillipe Reines sent Lowell an email asking him to FOIA specific Republican members.

Clinton herself “loved the idea,” according to a previous email from Reines but did not want Reines himself sending the requests to Congress, so Podesta suggested Lowell.

Read more here.  

FOIA News: Clinton aides said she had no duty to preserve Sidney Blumenthal emails

Clinton aides said she had no duty to preserve Sidney Blumenthal emails

By Josh Gerstein, Politico, Oct. 14, 2016

Aides to Hillary Clinton asserted she had no legal duty to preserve her email exchanges with longtime adviser Sidney Blumenthal, according to hacked email messages released Friday by WikiLeaks.

The claim — disputed by some government records experts — came after Blumenthal turned over to the House Benghazi Committee 16 Libya-related messages the pair apparently exchanged that Clinton never turned over to the State Department.

In a set of draft talking points from June 2015, Clinton campaign spokesman Brian Fallon wrote: "She would have been under no obligation to preserve them since Blumenthal wasn't a government employee."
…
Eventually, longtime Clinton and aide lawyer Cheryl Mills chimed in.

"I think the point can be made via noting that Sid was not a federal employee as needed (which as FYI means his emails only b/came federal records if used in the course of Dept business - so some were if forwarded and acted on and some weren't if nothing was done with them). But not sure it is worth the technical debate," Mills wrote.

However, a former Justice Department official expressed strong disagreement with that position Friday.

"That's wrong....grossly incorrect," said Dan Metcalfe, former director of Justice's Office of Information and Privacy. "It's not what she does with that message that answers the question of whether it's a federal record. It's the character of the email that already exists."

Read more here.

Court opinion issued Oct. 12, 2016

Parker v. U.S. Dep't of Justice (D.D.C) -- ruling that:  (1) the government was permitted to file a Motion for Summary Judgment instead of an Answer; (2) the Office of Professional Responsibility properly relied on Exemption 7(C) to withhold records about an AUSA who had practiced law without a valid license; and (3) the government failed to submit an affidavit concerning the withholdings made by EOUSA on records referred to it by OPR.

Summaries of all opinions issued since April 2015 available here.

FOIA News: Clinton to submit testimony about email destruction

Clinton to submit testimony in email case

By Sarah Westwood, Wash. Examiner, Oct. 13, 2016

Hillary Clinton is set to answer questions about her team's destruction of roughly 30,000 emails when she submits testimony Thursday in a high-profile lawsuit over her State Department records.

Clinton will be forced to describe the creation and operation of the server system that was kept in the basement of her Chappaqua, N.Y. home during her time as secretary of state, as well as the steps her staff took to separate work-related emails from private ones in 2014.

Her responses to the 25 questions posed by Judicial Watch, the conservative-leaning group that brought the suit, will be considered sworn testimony by a federal judge.

Read more here.

Court opinions issued Oct. 11, 2016

Shapiro v. Dep't of Justice (D.D.C.) -- ordering the Office of the Solicitor General to search the email accounts of former employees for records concerning changes to Supreme Court opinions, but finding that the agency's search was proper in all other respects.

Wright v. Admin. for Children & Families (D.D.C.) -- finding that HHS agency performed an adequate search for certain records concerning unaccompanied alien children, and that it properly redacted information pursuant to Exemption 5's deliberative process privilege.  Of note, the court ruled that the agency was not required to search employees' personal email accounts, because plaintiff had not rebutted the  presumption that "agency records responsive to a FOIA request would unlikely be located solely in their personal email accounts."

Summaries of all opinions issued since April 2015 available here.

Q&A: It's Fort Knox

Q.   I am having a problem getting any type of response from the FOIA office at the U.S. Army Human Resources Command in Fort Knox, KY.  In December 2015 I submitted a FOIA request to the e-mail address specified on their web site. So far no acknowledgement of receiving the request. A phone call to that office was never returned.  On September 17, 2016 I submitted a written FOIA request to the address specified on their web site. So far no response acknowledging receipt of the FOIA request. Today I tried to call the individual shown to be in charge of the FOIA office. Only able to reach an answering machine. So far no response from my message.  Any suggestions as to what I can do to get a response?

A.  Based on my own experience, I would suggest contacting Tifanie L. Cropper, Government Information Specialist, U.S. Army Human Resources Command, Freedom of Information & Privacy Act Office, tel. 502.613.4832, tifanie.l.cropper.civ@mail.mil.  If you still do not receive a response, you might wish to ask for help from the Office of Government Information Services.  

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.