GUIDANCE ON NEW RESTRICTIONS ON ASSESSING CERTAIN FEES
DOJ/OIP, FOIA Post, Oct. 19, 2016
With President Obama's signing of the FOIA Improvement Act of 2016, several substantive and procedural changes were made to the FOIA. Among these changes are additional restrictions on an agency’s ability to charge certain fees if the FOIA's time limits are not met. Today, OIP has published guidance to assist agencies in understanding these additional restrictions on charging fees.
Read more here.
By Dune Lawrence, Bloomberg, Oct. 19, 2016
Larry Kawa’s afternoons are busy with school-aged patients; “your smile is the signature of our reputation,” reads the website for his Boca Raton practice. Mornings, he devotes time to his other work—digging up evidence of the ways he says Clinton and the Obama administration have undermined national security and flouted the law. He has tried to accomplish this through the Freedom of Information Act (FOIA), which, like Kawa, turned 50 this year.
Kawa’s FOIA requests are part of a documentary trail that winds into and out of Clinton’s private e-mail server when she was secretary of state—the grass roots of an ongoing effort by conservative members of Congress and the conservative legal group Judicial Watch to vindicate their belief that Clinton broke the law and exposed national secrets.
Kawa does not support Trump in the race for president, but even as Clinton's lead has widened, he is still trying to expose what he calls a crisis in government accountability that transcends party lines.
“Americans deserve transparency, regardless of what side of the aisle you’re on," he says. "And if Hillary Clinton were a Republican, I wouldn’t feel any different.”
Read more here.
Q. Are absentee voter applications [in Michigan] subject to FOIA and what information, if any, will be redacted?
A. Certain information that appears on an absentee ballot application, such as a home address, would typically be protected in response to an access request. In this instance, however, Michigan's election law provides that applications for absentee ballots "shall be be open to public inspection at all reasonable hours." I infer from this provision that no information would be redacted in response to a request to inspect an application (or a FOIA request). For additional guidance, you might wish to contact the Secretary of State's Office, which oversees elections in Michigan.
Q. If I were to submit a police report [in Michigan], what information on that report would be available through the freedom of information act?
A. Michigan's FOIA contains several exemptions that a police department might rely upon to withhold information from a police report or other records. For example, the statute authorizes a public body to withhold information "of a personal nature if public disclosure of the information would constitute a clearly unwarranted invasion of an individual's privacy." MCL § 15.243(13)(1)(a). Additionally, a public body may withhold investigating records compiled for law enforcement purposes if disclosure would interfere with law enforcement proceedings, constitute an unwarranted invasion of personal privacy, or disclose the identity of a confidential source. See MCL 15.243(13)(1)(b).
Please note that the above-referenced exemptions are discretionary, meaning that a public body may release records even when it is legally entitled to withhold them. But a police department is not likely to make a discretionary release of law enforcement information if doing so would jeopardize an individual's safety. For further information, you might wish to contact the Michigan Coalition for Open Government, your local police department's FOIA coordinator, or a Michigan FOIA attorney.
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.
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.
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.
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.
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. 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.