Associated Press v. U.S. Dep't of State (D.D.C.) -- in an opinion abbreviated due to the time-sensitive nature of plaintiff's requests, ruling that the State Department properly withheld records concerning its civil settlement with BAE Systems pursuant to Exemptions 3, 4, 5, and 6.
Summaries of all opinions issued since April 2015 available here.
By Alex Howard, Sunlight Foundation, Nov. 2, 2016
In January 2017, the next White House will have an extraordinary opportunity to close the gap between open government data and the Freedom of Information Act (FOIA) when it deploys a new portal, as mandated by the reforms that became law this summer.
After Sunlight shared our vision for open government at the White House Open Data Summit in September, officials at the Office of Management and Budget (OMB) delegated with implementing FOIA reforms contacted us for more information about how that new portal should work. Here's what we told them: Over the next year, the White House should move aggressively to ensure that all FOIA responses be published as open data on Data.gov — not in separate databases — under a “release to one, release to all” policy.
Over the past year, we've explored different ways that FOIA could work better without more legislative action in Congress. Here's a specific breakdown how to use the reformed law to fix FOIA, from how the remade statute can be leveraged to drive positive change to an affirmative vision for a new FOIA.gov.
Read more here.
By Fred Kaplan, Slate, Nov. 2, 2016
We don’t yet know why James Comey wrote that letter to Congress about Hillary Clinton’s emails. We don’t fully know why President Obama decided not to bomb Syria after Bashar al-Assad crossed the “red line” by using chemical weapons. We don’t even know why President George W. Bush decided to invade Iraq. However, in 20 years or so, we might be able to unravel those mysteries and many more, thanks to a little-noticed revision to the Freedom of Information Act.
The revision—passed by Congress in July but making its first dent in the public record just this week—severely weakens one of the nine exemptions, under Section (b) of FOIA, that federal agencies can cite when rejecting a citizen’s request for specific government documents, declassifying them if necessary. The one in question is Exemption No. 5, which covers “inter-agency or intra-agency memorandums or letters”—a phrase that courts have since interpreted to include memos that are “part and parcel” of an agency’s “deliberative process.”
Under the new revision, agencies can no longer cite Exemption No. 5 as a reason for rejection if the document is at least 25 years old. Under the original language, as interpreted by the courts, the exemption had no sunset clause—an agency could justify keeping a document secret for all eternity.
The new language is the result of a five-year court battle waged by the National Security Archive, a private research organization that’s been filing FOIA lawsuits against the government, often successfully, since 1985.
Read more here.
National Security Archive, Oct. 31, 2016
The CIA today released the long-contested Volume V of its official history of the Bay of Pigs invasion, which it had successfully concealed until now by claiming that it was a “draft” and could be withheld from the public under the FOIA’s "deliberative process" privilege. The National Security Archive fought the agency for years in court to release the historically significant volume, only to have the U.S. Court of Appeals in 2014 uphold the CIA’s overly-broad interpretation of the "deliberative process" privilege. Special credit for today’s release goes to the champions of the 2016 FOIA amendments, which set a 25-year sunset for the exemption: Senators John Cornyn, Patrick Leahy, and Chuck Grassley, and Representatives Jason Chaffetz, Elijah Cummings, and Darrell Issa.
Chief CIA Historian David Robarge states in the cover letter announcing the document’s release that the agency is “releasing this draft volume today because recent 2016 changes in the Freedom of Information Act (FOIA) requires us to release some drafts that are responsive to FOIA requests if they are more than 25 years old.” This improvement – codified by the FOIA Improvement Act of 2016 – came directly from the National Security Archive’s years of litigation.
Read more here.
The bureau published heavily redacted records of former President Clinton's pardon of a fugitive financier.
By Josh Gerstein, Politico, Nov. 1, 2016
Hillary Clinton’s presidential campaign is raising questions about the timing of the FBI’s release Tuesday of records on a 15-year-old investigation into President Bill Clinton’s pardon to fugitive financier Marc Rich.
The FBI posted the 129 pages of records in its online Freedom of Information Act reading room in apparent response to a FOIA request seeking information on FBI inquiries into the Clinton Foundation.
The release was dated Monday, but an FBI Twitter account flagged the new posting Tuesday.
Read more here.
Q. The Benghazi Embassy had to have more than 4 employees/contractors in order to run an operation of that size and scope. How many were assigned, employed, or contracted, however they're categorized. Were they ever questioned by Congress? If yes, what did they report? If they weren't, why not? How do I obtain this information?
A. If you are interested in documents concerning Benghazi, you could send a FOIA request to the U.S. State Department (instructions here). Keep in mind, however, that an agency is not required to answer questions in response to a FOIA request; it need only search for reasonably described records. Additionally, before making a request, you might wish to browse reports and hearing testimony available from the U.S. House of Representative's Select Committee on Benghazi.
By Sarah Westwood, Washington Examiner, Oct. 31, 2016
A conservative-leaning watchdog group sued the FBI Friday after the law enforcement agency ignored a Freedom of Information Act request for records related to the Hillary Clinton email investigation.
Judicial Watch filed a FOIA on July 7 for documents that included "all records related to the meeting between Attorney General Lynch and former President Bill Clinton on June 27, 2016."
Bill Clinton and Lynch met privately on a Phoenix tarmac in the final days of the email probe after they said their jets unexpectedly landed near each other.
Read more here.
Freedom Watch v. Bureau of Land Mgmt. (D.D.C.) -- denying plaintiff's so-called discovery request seeking "full production" of requested records in case in which agencies averred they had never received plaintiff's requests.
Morales v. Sec'y, U.S. Dep't of State (D.D.C) -- denying plaintiffs' emergency motion seeking immediate processing of their FOIA request, because: (1) plaintiffs failed to ask the agency for expedited processing in his FOIA request; and (2) plaintiffs did not establish that they met any of the factors warranting preliminary injunctive relief.
Summaries of all opinions issued since April 2015 available here.
The U.S. Department of Health and Human Services has issued the final version of its FOIA regulations, which were published today in the Federal Register. The regulations were revised in order to reflect changes made to the statute over the past two decades and organizational changes within the Department.
[Note: I submitted the following comments to HHS on behalf of America Rising LLC]
Q. Who do I serve if I am filing a FOIA lawsuit against the U.S. Customs & Border Patrol?
A. Service of process in federal matters is governed by Rule 4 of the Federal Rules of Civil Procedure. Note that subsection (i) addresses suits against the United States and its agencies. You might also wish to consult the local rules of the district court in which you file the suit. As an example, see the local rules for the U.S. District Court for the District of Columbia. Additionally, section 5.42 of title 6 of the Code of Federal Regulations provides information about the service of summonses and complaints against the U.S. Department of Homeland Security.
Guidance for pro se litigants is available from most federal district courts. The U.S. District Court for the District of Columbia, for example, has published this handbook about how to file suits.