Q&A: Let's go to the videotape

Q.   Can the Michigan FOIA be used to obtain the video of a public high school football game, from that high schools athletic department? I am trying to scout an opponent and they are refusing to give me the video of their game.

A.   A public high school is considered a "public body" subject to Michigan's FOIA. Although none of the exemptions enumerated in section 15.243 of the statute strike me as directly applicable to the videotape you seek, I can only speculate that the high school considers the videotape to be confidential to the same extent as its football team's written playbook -- which, if disclosed, would clearly undermine its operations.  It is also possible that the high school considers the videotape to be an "education record" protected by the Family Educational Rights and Privacy Act.  

For further information, you might wish to review the FOIA guidance provided by the Michigan Attorney General's office.

Court opinion issued Nov. 3, 2016

Schotz v. U.S. Dep't of Justice (D.D.C.) -- (1) denying pro se plaintiff's motion to reconsider decision in the Federal Bureau of Prison's favor, because records released by BOP in response to a different request did not qualify as "new evidence" nor did it undermine the reasonableness of the agency's search; (2) denying plaintiff's motion for costs because plaintiff did not prevail by judicial order, the lawsuit was not the proximate cause of agency's release of records, plaintiff sought records for purely personal reasons, and the agency's uncontested withholdings were reasonable.  

Summaries of all opinions issued since April 2015 available here.

FOIA News: Appeals court looks set to revive suit aimed at recovering Clinton emails

Appeals court looks set to revive suit aimed at recovering Clinton emails

By Josh Gerstein, Politico, Nov. 4, 2016

A federal appeals court appears poised to revive a lawsuit demanding that the State Department set in motion a process that could trigger government-backed litigation to recover additional emails sent or received by Hillary Clinton during her tenure as secretary of state.

The D.C. Circuit Court of Appeals heard arguments Friday on a pair of lawsuits seeking to force Secretary of State John Kerry to formally notify the National Archives that Clinton's emails were unlawfully removed from government custody. Such a move could lead to a Justice Department lawsuit under the Federal Records Act, seeking to force Clinton and her aides to return any government records in their possession.

During roughly 40 minutes of arguments, two judges on the D.C. Circuit panel, Stephen Williams and Brett Kavanuagh seemed inclined to revive at least one of the suits: a complaint brought by the conservative group Judicial Watch.

The third appellate judge at Friday's hearing, Robert Wilkins, sounded supportive of the district court's ruling tossing the cases out as moot.

Read more here.

Listen to the oral argument here.

Court opinion issued Nov. 2, 2016

Muchnick v. DHS (N.D. Cal.) -- issuing a tentative order, pending resolution between the parties, that: (1) DHS must release information about the alleged crimes of George Gibney, decisions about immigration benefits he sought, and the dates any documents containing such information were created; (2) DHS may withhold, pursuant to Exemptions 6 and 7(C), all identifying information about third parties other than Gibney, as well as Gibney's past addresses, salary history, Alien number, and the like; and (3) DHS may redact records revealing the investigative procedures it used to obtain information about Gibney, but not the information itself, pursuant to Exemption 7(E).  

Summaries of all opinions issued since April 2015 available here.

FOIA News: Conservative law group sues Department of Justice for allegedly ignoring public-records requests

Conservative law group sues Department of Justice for allegedly ignoring public-records requests

By Oliver Darcy, Business Insider, Nov. 3, 2016

A conservative-leaning law group on Wednesday filed a lawsuit against the Department of Justice, alleging the federal agency violated the law by ignoring Freedom of Information Act requests for records related to Attorney General Loretta Lynch’s tarmac meeting with former President Bill Clinton.

“We’re forcing their hand,” Jay Sekulow, chief counsel of the American Center for Law and Justice, wrote in a blog post announcing the lawsuit.

Sekulow added: “We’re taking the Obama Administration to federal court. Again. We’re filing a lawsuit against the Department of Justice, to ensure true justice.”

The ACLJ initially sent FOIA requests to the DOJ requesting information on Lynch’s meeting with Clinton.

The records requested included documents “containing any discussion of or in any way regarding the meeting between” the two at the Phoenix airport and electronic communications “containing any discussion of or in any way naming, regarding, involving or referring Clinton.”

Read more here.

FOIA News: Group Seeks Info on Immigrants & Crime

Group Seeks Info on Immigrants & Crime

By Tim Ryan, Courthouse News Service, Nov. 3, 2016

An "immigration-reform" group sued the FBI and Bureau of Prison on Tuesday, seeking information it claims will show that the government undercounts crimes committed by undocumented immigrants.

The Federation for American Immigration Reform (FAIR) also sued the Office of Justice Programs in the federal FOIA complaint, seeking raw data from a Government Accountability Office report "relating to criminal aliens with arrests dating from August 1955 to April 2010."

FAIR says it submitted the FOIA request on behalf of Don Rosenberg, a resident of California ... [whose] son, Drew Rosenberg, was killed by an illegal alien in 2010."

In a statement announcing its lawsuit Wednesday, FAIR said: "That report, published in 2011 by the Government Accountability Office (GAO), attributed, at a minimum, over 20,000 killings of U.S. citizens and lawful residents to illegal aliens. Mr. Rosenberg's research indicates the figures are far higher."

Read more here.

Court opinion issued Nov. 1, 2016

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.

FOIA News: Sunlight Foundation on improving FOIA.gov

Connecting freedom of information to open data: How to build a better FOIA.gov

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.

FOIA News: Slate's Fred Kaplan on the benefits of FOIA reform

A Victory for Transparency, Finally

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.

FOIA News: CIA Releases Controversial Bay of Pigs History

CIA Releases Controversial Bay of Pigs History

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.