FOIA Advisor

FOIA News (2015-16)

FOIA News: FTC publishes two rules to modify FOIA regulations

FOIA News (2015-16)Ryan MulveyComment

In today's issue of the Federal Register, the Federal Trade Commission published two separate rules relating to its FOIA regulations.

First, in a final rule, effective immediately, the FTC revised "its Rules of Practice governing access to agency records to implement provisions of the FOIA Improvement Act of 2016."  This rule was adopted without an opportunity for public comment because it "relate[s] solely to agency practice and procedure."

Second, the FTC published a proposed rule to amend certainfee provisions in its FOIA regulations.  The agency seeks to modify its definition of a "representative of the news media" so as to comport with the current statutory definition.  Further, it intends to introduce a requirement that, "[t]o qualify for news media status, a request must not be for a nonjournalistic commercial use."  With respect to the dissemination requirement for public interest fee waivers, the FTC proposes to replace "the understanding of the public at large" with simply "public understanding," which would reflect the statutory standard.  Finally, the agency has outlined a number of changes to its fee schedule and limitations on fees when a response to a request is untimely.  The comment period closes on January 23, 2017.

FOIA News: OPIC proposes new FOIA regulations

FOIA News (2015-16)Ryan MulveyComment

The Overseas Private Investment Corporation published a notice of proposed rulemaking to revise its FOIA regulations in today's issue of the Federal Register.  The proposed changes are intended to comply with the "FOIA Improvement Act of 2016, make[] administrative changes to reflect OPIC's costs, and conform[] more closely to the language recommended by the Department of Justice, Office of Information Policy."  The comment period closes on January 23, 2016.

FOIA News: National Council on Disability issues new FOIA regulations

FOIA News (2015-16)Ryan MulveyComment

In today's issue of the Federal Register, the National Council on Disability published a final rule amending its FOIA regulations in order to comply with the statutory mandates enacted by the FOIA Improvement Act of 2016.  The agency issued the rule "so as to include comments which were submitted for [its] existing FOIA regulations.  But due to issues beyond [the agency's] control, [it] did not receive the comments until after publication of the final rule."  The new regulations are effective immediately.

FOIA News: NCUA issues interim rule with request for comments

FOIA News (2015-16)Ryan MulveyComment

The National Credit Union Administration published an interim final rule to implement new FOIA regulations, along with a request for public comments, in today's issue of the Federal Register.   NCUA is revising its procedures in order to comply with the FOIA Improvement Act of 2016.  The interim final rule is effective immediately; comments must be received by the agency on or before January 23, 2017.

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

FOIA News (2015-16)Kevin SchmidtComment

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

FOIA News (2015-16)Allan BlutsteinComment

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.

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

FOIA News (2015-16)Kevin SchmidtComment

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

FOIA News (2015-16)Ryan MulveyComment

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

FOIA News (2015-16)Kevin SchmidtComment

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: Legal Services Corporation issues final FOIA regulations

FOIA News (2015-16)Ryan MulveyComment

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.