FOIA News: EPA IG says EPA needs to improve retention of text messages

Findings from "Congressionally Requested Audit: EPA Needs to Improve Processes for Preserving Text Messages as Federal Records":

• From July 1, 2014, through June 30, 2015, EPA employees sent and received over 3.1 million text messages using government-issued mobile devices procured under the WCF.
• Our audit work disclosed that government-issued mobile devices of senior officials are searched for text messages that need to be preserved as records at different intervals. For example, some senior EPA officials have their staff search their mobile devices from periodically (at least monthly) to every 20 days.
• Based on the above, the possibility exists that the EPA could receive a FOIA request before an employee forwards and preserves their potential text message records within the agency’s record-keeping system and, thus, the impacted government-issued mobile device would not have been searched. As such, improving instructions to employees about FOIA and their record responsibilities could strengthen the agency’s record-keeping internal controls for searching all potential sources of records in the event an employee has not already captured the applicable records in the agency’s record-keeping system.

Read the report here.

FOIA News: Feds win drone case in Second Circuit

Appeals court brings ACLU’s probe of U.S. drones targeting Americans overseas to a halt as it locks up sensitive docs 

By Barbara Ross, NY Daily News, Dec. 20, 2016

The American Civil Liberties Union’s bid to learn more about U.S. drones killing American citizens abroad came to an abrupt end Tuesday when a federal appellate court in Manhattan said the nonprofit group is not entitled to any of the information it sought under the Freedom of Information Act from intelligence and defense agencies.

In 2015, District Court Judge Colleen McMahon ruled that seven of 59 documents sought by the ACLU could be made public with redactions.

Both the ACLU and the government appealed that decision and the government won.

The U.S. Court of Appeals in Manhattan ruled that the seven documents must remain confidential and none of the other documents could be disclosed either.

Read more here.

Q&A: Polluting park rangers?

Q.  How do I file a FOIA request with the U.S. Forest Service about Sumter National Forest in South Carolina?  I’m looking for records concerning lead contamination from their gun range into a city water supply, which is a violation of state and federal statutes.  They have ignored my written and verbal requests for information for over a year.

A.  The U.S. Forest Service has instructions for how to file a FOIA request available online.  A request for records maintained by the rangers in Sumter National Forest would likely need to be submitted to one of the Forest Service’s regional FOIA Service Centers—in this case, Region 8.  Further details, including the mailing address, e-mail, and phone number for Region 8 are also available online. 

FOIA News: ProPublica Files Lawsuit Seeking Agent Orange Documents From the VA

ProPublica Files Lawsuit Seeking Agent Orange Documents From the VA

By Charles Ornstein, ProPublica, Dec. 20, 2016

ProPublica has sued the U.S. Department of Veterans Affairs, claiming the agency failed to promptly process a request for correspondence with a consultant about Agent Orange, a toxic defoliant used during the Vietnam War.

The lawsuit, filed late Friday in U.S. District Court in Washington, D.C., alleges that the delays violated the Freedom of Information Act, a 50-year-old law whose mission is to provide the public with information about government operations.

ProPublica submitted a FOIA request in May, requesting correspondence between various VA officials and scientist Alvin Young, who has guided the stance of the military and VA on Agent Orange and whether it has harmed service members. The request also sought internal correspondence about any contracts awarded to Young or his consulting firm.

To date, the VA has not provided any of the requested documents.

Read more here.

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.