Court opinions issued Jan. 18 & Jan. 20, 2017

Jan. 20, 2017

Hetznecker v. Nat'l Sec. Agency (E.D. Pa.) -- in case concerning "Occupy Philly" movement, denying government's motion to reconsider court order requiring agencies to submit documents for in camera review. 

Jan. 18, 2017

Dibacco v. U.S. Dep't of the Army (D.D.C.) -- ruling that the Army conducted adequate searches in response to plaintiff's 30-year old requests regarding Nazi General Reinhard Gehlen, and that the CIA properly relied on Exemptions 1 and 3 to withhold certain information from Army records. 

Huntington v. U.S. Dep't of Commerce (D.D.C.) -- concluding that the U.S. Patent & Trade Office failed to conduct a reasonable search for records concerning confidential program, and that USPTO properly withheld records pursuant to Exemption 5 (deliberative process privilege).   

Am. Civil Liberties Union v. Dep't of Def. (S.D.N.Y.) -- finding that: (1) government failed to provide sufficient information to permit court to determine whether photographs of Abu Ghraib detainees were protected by Exemption 3 ( Protected National Security Documents Act); and (2) Exemption 7(F) did not protect photographs from disclosure because government provided a "vague and unlimited" description as to who was endangered.

Am. Civil Liberties Union v. U.S. Dep't of Justice (S.D.N.Y.) -- holding that DOJ properly withheld a 2003 memorandum regarding common commercial service agreements pursuant to Exemptions 1 and 3.  

Summaries of all opinions issued since April 2015 available here.

Q&A: Snap out of it

Q.  Why would I be contacted by the USDA letting me know that info has been requested regarding my Food and Nutrition Services sales for my store and will be released to the general public?  I'm dumbfounded.

A.  In November 2016, a federal court ruled that USDA was required under FOIA to release the annual sales amounts that retailers earn by participating in the Supplemental Nutrition Assistance Program (SNAP).  Here is one of several news articles that summarizes the court's decision.  

Court opinion issued Jan. 17, 2017

Ctr. for Pub. Integrity v. U.S. Dep't of Energy (D.D.C.) -- finding that: (1) with the exception of a single email, DOE properly relied on Exemption 4 to withhold certain contract provisions and contract strategy of company investigated by agency's Inspector General for illegally using taxpayer funds to engage in lobbying activities; (2) DOE properly withheld sensitive national security information pursuant to Exemptions 3, 7(E), and 7(F); (3) DOE failed to provide sufficient information to permit court to determine whether Exemption 7(C) protects identities of company employees, DOE employees who serve at GS-15 level and below, and individuals interviewed during DOE's investigation; and (4) DOE properly used Exemption 6 to withhold identities of certain low-level contractor employees and of targets of company's lobbying strategy. 

Summaries of all opinions issued since April 2015 available here.

FOIA News: ACLU targets President Trump

The ACLU Announces Mass FOIA For Donald Trump’s Business Conflicts

The civil liberties group laid out a seven-point plan to protect Americans’ rights in the Trump era.

By Paul Blumenthal, The Huffington Post, Jan. 20, 2017

Moments before Donald Trump took the oath of office to become the 45th president of the United States, the American Civil Liberties Union filed a massive Freedom of Information Act request for documents related to his multi-billion dollar business and conflicts of interest.

The civil liberties group is requesting documents from the Office of Government Ethics, the Justice Department’s Office of Legal Counsel, the General Services Administration and the Office of Personnel Management. The ACLU also released a seven-point plan explaining how it will challenge Trump in the next four years.

Read more here.

FOIA News: Labor Department amends FOIA regulations

The Department of Labor published a final rule to revise and update its FOIA regulations in today's issue of the Federal Register.  The agency is streamlining several procedural provisions and incorporating changes introduced by the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016.  The agency received six comments after publishing its Notice of Proposed Rulemaking on August 17, 2016.  The new regulations are effective on January 23, 2017.

FOIA News: ACUS publishes new FOIA regulations

The Administrative Conference of the United States published a final rule implementing new FOIA regulations in today's issue of the Federal Register. These revisions are required to comply with the FOIA Improvement Act of 2016. The agency did not previously solicit public comment, but it intends to withdraw the rule for further modification if "significant adverse comment is received by February 22, 2017."  The rule is otherwise effective on March 14, 2017.

FOIA News: FBI releases records concerning Trump

FBI releases Trump-related files before inauguration

By Megan R. Wilson, The Hill, Jan. 19, 2017

The FBI has released a batch of files related to Donald Trump that had been sought through Freedom of Information Act (FOIA) requests.

The files, released shortly before Trump's inauguration, came in response to requests for information on Trump Shuttle and the Trump Taj Mahal, the billionaire’s now-closed Atlantic City casino. 

In the new release involving Trump, there is also a list of all the FOIA requests filed to the FBI containing the word “Trump,” which include many of his businesses. The results or full texts of any of those requests are not available.

The brief documents contain no substantial information about Trump or his businesses.

Read more here.

Q&A: Milling about for settlement records

Q.  The U.S. Forest Service (USFS) traded a parcel of land with me that I believe the agency knew to be contaminated. The land in question is an old mill site in Montana.  USFS never disclosed that the site was contaminated. Interestingly, USFS and the Environmental Protection Agency (EPA) settled with Unocal/Chevron to pay clean up costs for other contaminated mill sites in the same area.  Is there a way to request information about those settlement discussions so that I can use the same material to try and get a clean-up deal for my land?

A.  Records concerning settlement discussions would likely be exempt from disclosure on a number of grounds.  First, while there isn't a settled consensus as to its application in the FOIA context, some courts have recognized a "settlement negotiations" privilege that could conceivably be used by an agency in conjunction with Exemption 5. Internal agency communications and related records about settlement could also independently qualify for withholding under the deliberative process or attorney work-product privileges.  Finally, these records could be protected under Exemption 4 as containing privileged or confidential commercial or financial information belonging to Unocal/Chevron.

All that being said, you may still want to try filing a FOIA request.  USFS has instructions available online, as does the EPA.

Court opinion issued Jan. 16, 2017

Buholtz v. U.S. Marshals Serv. (D.D.C.) -- holding that records maintained by USMS contract jail were not "agency records" and that USMS was not required to retrieve them in response to plaintiff's request.   

Summaries of all opinions issued since April 2015 available here.

FOIA News: DOJ/OIP hiring FOIA attorneys

The Department of Justice announced today that it is seeking multiple FOIA attorneys to work on the Office of Information Policy's Initial Request Staff.  The primary responsibilities of the Attorney-Advisor positions will be "to "identify and process records in response to FOIA and Privacy Act requests, including requests that become the subjects of litigation, on behalf of the Senior Leadership Offices in the Department . . . ."

Read the complete announcement here.