Court opinions issued Dec. 20, 2016

Am. Civil Liberties Union v. U.S. Dep't of Justice (2nd Cir.) -- affirming district court's decision that 52 documents concerning drone strikes were protected from disclosure; finding that seven other drone-related documents were protected by the deliberative process privilege, reversing the district court's judgment that they must be disclosed.    

Rosiere v. United States (10th Cir.) -- affirming district court's decision to dismiss pro se prisoner's lawsuit as malicious, in light of his multiple, repetitious suits.  

Nat'l Ass'n of Criminal Def. Lawyers v. U.S. Dep't of Justice (D.C. Cir.) -- denying appellant's petition for rehearing, but amending July 19, 2016 opinion and remanding case to district court to consider whether requested "Blue Book" manual contains non-exempt and reasonably segregable statements of discovery policy.  

Summaries of all opinions issued since April 2015 available here.

FOIA News: USAID finalizes new FOIA regulations

The U.S. Agency for International Development published a final rule implementing new FOIA regulations in today's issue of the Federal Register.  Most of the changes are intended to bring the agency into compliance with the FOIA Improvement Act of 2016.  USAID received four comments.  Some of the more significant recommendations adopted from these comments include new fee category definitions for educational institutions and representatives of the news media, further information about the role of the FOIA Public Liaison and the Office of Government Information Services, and the introduction of a "substantial interest" standard for the consultation process.  USAID's rule is effective December 27, 2016.

FOIA News: FTC publishes two rules to modify FOIA regulations

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

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

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

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

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.