Q&A: The Real Thing?

Q.  I requested and received some financial information from the VA involving the dollar amount of transaction fees paid to our company, per year, under specific identified contracts.  You would think we had that information, but payment is collected and distributed by a third party and our accounting was managed by an outside source.  We believe that our vendor under-reported the collection of fees and diverted those.  Accordingly, we went to the agency and through a FOIA request asked for a summary by year of fees paid. Those fees turned out to exceed those reported by our vendor.  For purposes of litigation, how do I authenticate the validity of the data?

A.  The Department of Veterans Affairs can attest under seal or certify that the records are true copies.  The agency will charge a fee for this service.  For details, contact the FOIA office that processed your request.

FOIA News: Dep't of State employee pleads the 5th in Clinton email case

State IT official repeatedly takes Fifth Amendment in Clinton email lawsuit

By Josh Gerstein, Politico, Oct. 24, 2016

A retired State Department information technology official asserted his Fifth Amendment rights more than 90 times during a deposition Monday in a civil lawsuit related to Hillary Clinton's use of a private email server, according to the conservative group that brought the litigation.

In August, a federal judge ordered John Bentel — former director of the Information Resources Management staff in Secretary of State Clinton's office — to submit to a sworn deposition in a Freedom of Information Act lawsuit brought by Judicial Watch.

When ordering the questioning of Bentel, U.S. District Court Judge Emmet Sullivan noted that Bentel told the House Benghazi Committee last year that he had no recollection of being told about Clinton's private server, but emails that have become public in the past year or so showed he was informed about issues related to the server.

Read more here. 

Court opinions issued Oct. 21, 2016

Heartland Alliance Nat'l Immigrant Justice Ctr. v. DHS (7th Cir. 2016)  -- affirming district court's decision that Exemption 7(E) protected information relating to Tier III terrorist organizations, defined by the Immigration and Nationality Act in 8 U.S.C. § 1182(a)(3)(B)(vi)(III). 

Freedom Watch v. U.S. Dep't of State (D.D.C. 2016)  --  denying plaintiff's Rule 60 motion after determining that the agency performed a reasonable search of documents located by the FBI from Hillary Clinton's personal email.  

Summaries of all opinions issued since April 2015 available here.

FOIA News: Office of Special Counsel partially updates FOIA regs

The Office of Special Counsel has finalized FOIA regulations that update and clarify its procedures for the submission of requests and appeals, according to a Federal Register notice to be published on Monday, October 24, 2016.  The agency issued its proposed regulations in May 2016, and therefore they do not reflect the updates mandated by the FOIA Improvement Act of 2016.

[Note: I submitted comments to OSC on behalf of America Rising LLC, which is referred to in the notice as the "first commenter."]

FOIA News: More Damn Emails

State Department Releases 110 Clinton Emails

By Byron Tau, Wall St. J., Oct 21, 2016, 

The State Department released another 110 emails from Hillary Clinton on Friday, mostly dealing with routine business from her time as secretary of state.

Under a court order as part of several Freedom of Information Act lawsuits against the agency, the State Department made public about 240 pages of correspondence from Mrs. Clinton’s tenure in office, which ran from 2009 to 2013.

The emails were recovered by the Federal Bureau of Investigation as part of its now-closed investigation into whether Mrs. Clinton or her aides mishandled classified information. The FBI closed the case without recommending any charges.

Read more here. 

Court opinion issued Oct. 19, 2016

Worldnetdaily.com v. U.S. Dep't of Justice (D.D.C.) -- concluding that the government properly relied upon Exemption 5 to withhold a memorandum that recommended no charges against the law enforcement officials involved in the fatal shooting of Miriam Carey at the U.S. Capitol in 2013.

Summaries of all opinions issued since April 2015 available here.

FOIA News: Office of Information Policy issues guidance on fees

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.  

FOIA News: A Florida Orthodontist’s FOIA-Fueled, Anti-Clinton Crusade

A Florida Orthodontist’s FOIA-Fueled, Anti-Clinton Crusade

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&A: O Michigan Voter, Where Art Thou?

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&A: Go Blue?

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.