FOIA News: Department of the Interior finalizes new FOIA regulations

Today, in the Federal Register, the Department of the Interior published a final rule implementing new FOIA regulations, which will go into effect on January 19, 2017.  The revisions introduced by the agency are meant to bring its regulations into compliance with the FOIA Improvement Act of 2016.  DOI also indicated that it had "received feedback from its FOIA practitioners and requesters and identified areas where it would be possible to further update, clarify, and streamline the language of some procedural provisions."  During the notice-and-comment phase of the rulemaking, DOI received six comments, including two from other components of the Federal government.

FOIA News: Mills, State Department oppose video release in Clinton email case

Mills, State Department oppose video release in Clinton email case

By Josh Gerstein, Politico, Dec. 19, 2016

Lawyers for the State Department and former Hillary Clinton aide Cheryl Mills are opposing a conservative group's move to unseal videos of depositions taken in a Freedom of Information act lawsuit relating to Clinton's use of a private email account.

Attorneys for Mills and attorneys for the diplomatic agency where she formerly worked as chief of staff under Clinton are urging U.S. District Court Judge Emmet Sullivan not to disturb a prior order barring publication of videos of the depositions taken in the case brought by watchdog group Judicial Watch. Transcripts of the depositions were made public shortly after they took place.

Judicial Watch argued in a motion filed earlier this month that the ban on distribution of the videos should be lifted since the presidential election has passed, diminishing the chances the videos will become fodder for election-related ads.

However, lawyers for Mills and State said the judge's brief order in May that put the videos under wraps made no mention of the election.

Read more here.

FOIA News: Frequent EPA FOIA requester joins transition team

Longtime EPA foe goes behind enemy lines on Trump ‘landing team

By Stephen Dinan, Wash. Times, Dec. 18, 2016

For a decade, he has used open-records laws to pry loose some of the EPA’s secrets. Now Christopher Horner is on the inside, part of President-elect Donald Trump’s landing team at the Environmental Protection Agency, preparing the way for the next administration.

Perhaps no issue will see a greater change Jan. 20 than energy and environmental policy, and the EPA will be the epicenter of that upheaval, moving from a leadership committed to global warming science to a band of skeptics eager to upend the past eight years.

It’s the latest evidence that elections have consequences and in some cases ignite strange chain reactions — such as Mr. Horner being posted to the EPA.

Read more here.

Court opinions issued Dec. 15, 2016

Gahagan v. U.S. Citizenship & Immigration Servs. (5th Cir.) -- affirming district court's decision that plaintiff was "eligible" but not "entitled" to attorney's fees; rejecting plaintiff's argument that eligibility-entitlement test had been superseded by statutory amendments in 2007.    

Cause of Action Inst. v. Eggleston (D.D.C.) -- rejecting plaintiff's claim that various agencies engaged in a "pattern and practice" of violating FOIA by delaying responses to consult with the Office of White Counsel.  As an initial matter, the court held that plaintiff's claim improperly relied upon requests made by other requesters, as well as requests submitted by plaintiff that did not involve White House consultation.  Further, the court observed that "delay alone, even repeated delay," is not actionable as a pattern-and-practice claim.  Lastly, the court found that plaintiff's allegation that its requests were delayed for unnecessary and illicit purposes was "conclusory" and "unsupported."

Summaries of all opinions issued since April 2015 available here.

Court opinion issued Dec. 14, 2016

Gahagan v. U.S. Citizenship & Immigration Servs. (E.D. La.) -- finding that agency failed to perform an adequate search for a "Form I-485 Receipt Notice," and ordering agency to provide plaintiff with a recreated notice within 24 hours.  

Summaries of all opinions issued since April 2015 available here.

FOIA News: Legal Services Corporation issues final FOIA regulations

The Legal Services Corporation published a final rule implementing new FOIA regulations in today's issue of the Federal Register.  The agency described the revisions as necessary to comply with the FOIA Improvement Act of 2016.  It also made "technical changes" to "improve the structure and clarity" of its regulations.  LSC reported that it received "no substantive adverse comments."  Two comments recommended technical changes.  LSC's revised FOIA regulations are effective immediately.

FOIA News: U.S. Trade Representative issues final FOIA regulations

After considering comments to its draft FOIA regulations, the United States Trade Representative issued final regulations that appear in today's Federal Register.  The amendments reflect "a comprehensive update" of the agency's regulations and describe "in plain language how to make a FOIA request to USTR and how the FOIA Office processes requests for records."  USTR's revised FOIA regulations are effective immediately.  

FOIA News: MuckRock: How we sued the CIA and (mostly) won

How we sued the CIA and (mostly) won

By Michael Morisy, MuckRock, Dec. 14, 2016

In June of 2014, we announced what was then our first lawsuit: we were suing the Central Intelligence Agency over access to the CREST database, as well as a variety of metadata regarding how that database is used.

CREST serves as the CIA’s vast database of declassified information, much of which dates back through the Cold War. It currently includes over 13 million pages of records.

We’re pleased that after a little over two years, our suit will result in greater public access to an important historical resource. That fight was led by the inimitable Kel McClanahan of National Security Counselors, who represented us pro bono.

Read more here.

Court opinions issued Dec. 12, 2016

Freedom Watch v. Nat'l Sec. Agency (D.D.C.) -- on remand from D.C. Circuit, finding that the State Department conducted an adequate search for records relating to New York Times article about classified government cyberattacks against Iranian nuclear program.

Gahagan v. U.S. Citizenship & Immigration Servs. (E.D. La.) -- striking agency declaration because declarant did not attest that he had personal knowledge of or familiarity with documents in question.

Summaries of all opinions issued since April 2015 available here.

FOIA News: CoA Institute Sues CFPB for Anti-Arbitration Rule Docs

CoA Institute Sues CFPB for Anti-Arbitration Rule Docs

Cause of Action Institute, Dec. 13, 2016

Cause of Action Institute (“CoA Institute”) today filed a lawsuit in the U.S. District Court for the District of Columbia to compel the Consumer Financial Protection Bureau (“CFPB”) to provide records the agency used in formulating its rule to prohibit the use of mandatory binding arbitration clauses in financial services contracts.
…
In April 2016, CoA Institute filed a Freedom of Information Act (“FOIA”) request for records that would show how the agency conducted its study. Although CFPB produced some documents, the agency withheld a large number of responsive records and information. 

In September, 2016, CFPB issued a final determination, indicating the agency would withhold 1,877 pages of responsive records. CoA Institute appealed the CFPB’s determination and challenged each FOIA exemption the agency applied to the production. Last month, CFPB denied the appeal.

Read more here.

Read the complaint here.