Q&A: Uncharitable boss?

Q.  Can I make a freedom of Information request to a non-profit organization [in Massachusetts] if they failed to provide a resolution to my complaint against my boss?  The investigation is over, but I would like copies of the complete investigation because they did not give me any resolution.

A.  The Public Records Law in Massachusetts applies to records created or obtained by government entities. Therefore, the records you seek do not appear to be subject to a PRL request.  For further information, you might wish to review A Guide to the Massachusetts Public Records Law issued by the Secretary of the Commonwealth.  

FOIA News: Justice Department fights order to preserve ex-DHS officials’ emails

Justice Department fights order to preserve ex-DHS officials’ emails

By Josh Gerstein, Politico, Jan. 27, 2017

The Justice Department is asking a federal judge to reconsider an order requiring four former Department of Homeland Security officials, including ex-Secretary Jeh Johnson, to preserve many of their emails stored on private accounts.

Last week, two days before the inauguration of President Donald Trump, U.S. District Court Judge Randolph Moss ordered that Johnson and three former top DHS officials move messages they stored in online, personal accounts to thumb drives or hard drives for safekeeping.

Moss said he ordered the move out of “an abundance of caution” in connection with a Judicial Watch Freedom of Information Act lawsuit exploring the officials’ use of personal email on government computers.

Justice Department lawyers opposed the preservation order, saying the officials already pledged to hang on to any potentially responsive emails in their accounts. On Thursday, federal government attorneys went back to Moss, asking him to reconsider the order.

Read more here.

FOIA News: More on yesterday's FOIA Advisory Committee's meeting

How does FOIA fit under the Trump administration?

By Chase Gunter, FCW, Jan. 26, 2017

In the absence of new directives from the Trump administration, open government advocates from the public and private sectors are continuing their work to strengthen and expand the use of the Freedom of Information Act.

FOIA is a 50-year-old transparency law compelling the federal government to disclose information requested by citizens, with certain exceptions for privacy and security concerns. The Freedom of Information Act Advisory Committee, which met on Jan. 26 in Washington, is a panel created in 2014 to encourage dialog between government and the requestor community.

Committee chair and Office of Government Information Services Director Alina Semo told FCW that FOIA would play an important role in a Trump administration, as it has under prior presidents, by providing a way for the public to directly access government documents.

Read more here.

Court opinions issued Jan. 25-26, 2017

Jan. 26, 2017

Inclusive Cmtys. Project v. HUD (N.D. Tex.) -- finding that prevailing plaintiff could recover attorney fees for time spent to review records to determine whether agency's response was fully responsive to its request.

Fabricant v. Dep't of Justice (9th Cir.) (unpublished opinion) -- affirming district court's decision that agency conducted reasonable search for records concerning informant who testified against plaintiff, and finding that court did not abuse its discretion in denying plaintiff's motion for discovery and costs.  

Jan. 25, 2017

O'Neill v. U.S. Dep't of Justice (E.D. Wis.) -- concluding that United States Marshal's Service and FBI performed reasonable searches for 56-page courtroom security plan, along with documents related to murder plot, created in 2000 in connection with plaintiff's criminal case.

Summaries of all opinions issued since April 2015 available here.

FOIA News: Highlights from FOIA Advisory Committee meeting

FOIA Federal Advisory Meeting Underscores Questions of ‘Release to One, Release to All’ Policy and FOIA Portal Budget 

By Lauren Harper, Unredacted, Jan. 26, 2017

DOJ’s Pustay Refuses to Answer Questions During 2017’s First FOIA Advisory Committee Meeting

The FOIA Federal Advisory Committee held its first meeting of 2017 today. Chaired by the Office of Government Information Services’ new head, Alina Semo, it focused on presentations from its three subcommittees: proactive disclosures, efficiencies and resources, and searches.

Highlights from the meeting included a terrific presentation from Health and Human Services’ Michael Marquis, which begins around the 50’ mark. Marquis helped the HHS FOIA shop reduce its backlog by 10 per cent over the last seven years. When asked what his biggest piece of advice was for other agencies wishing to follow suit, he answered that the best way to improve FOIA processing going forward, both within his agency and across the government, would be an enterprise-wide tracking system for both requests and appeals.

Read more here.  

FOIA News: Gizmodo says the NSA has found a new way to categorically deny FOIA requests

The NSA Has Found a New Way to Categorically Deny FOIA Requests

By Brendan O'Connor, Gizmodo, Jan. 26, 2017

The notoriously secretive National Security Agency is raising “security concerns” to justify an apparent new policy of pre-emptively denying Freedom of Information Act requests about the agency’s contractors.

The policy was cited by John R. Chapman, the agency’s chief FOIA public liaison officer, in a letter to Gizmodo on January 17, 2017, three days before Donald Trump’s inauguration. In explaining that the agency had declined to even conduct a search for records about a company called SCL Group, Chapman wrote, “Please be advised that due to changing security concerns, this is now our standard response to all requests where we reasonably believe acquisition records are being sought on a contract or contract-related activity.”

The response appears to indicate that the NSA will no longer release—or even search for—any records pertaining to the private contractors it works with. SCL Group is a U.K.-based behavioral research firm that has reportedly worked with the Department of Defense in the past; its subsidiary Cambridge Analytica was a central component of the Trump campaign’s winning strategy.

Several FOIA experts contacted by Gizmodo said they had never heard of such a denial before.

Read more here.

Court opinion issued Jan. 23. 2017

W. Arms v. United States (W.D. Wash.) -- deciding that the Bureau of Alcohol, Tobacco, Firearms, and Explosives: (1) violated FOIA by failing to produce records for 20 months; (2) performed a reasonable search for response records; (3) properly withheld certain firearms records pursuant to Exemption 3 (Consolidated Appropriations Acts, 2005-2012) and Exemption 5 (deliberative process privilege).  The court further found that plaintiff was eligible for attorney fees and costs as the prevailing party.

Summaries of all opinions issued since April 2015 available here.

FOIA News: Journalists collaborating on FOIA and Trump

Journalists around the country are joining a Slack channel devoted to FOIA and Trump

By Kristen Hare, Poynter, Jan. 25, 2017

A few days before President Trump's inauguration, MuckRock opened up a Slack channel to help journalists better cover him and his administration.

As of Wednesday, 250 people signed up. Most are journalists, about half from national newsrooms and half from local newsrooms around the country.

"Anytime we have a new administration, there's turnover and there are changes," said Michael Morisy, MuckRock's co-founder. "I always think it's important for reporters to get an understating of what that new administration's priorities are. I think that's true no matter who's taking office."

Read more here.

Q&A: Keep your friends close and your enemies closer

Q.  Am I able to file a FOIA to find out who submitted one on me?

A.  Yes.  Courts have held that FOIA requesters have no general expectations of privacy regarding their identities. Therefore, you may request an agency's FOIA "log" that lists each request received, and/or seek copies of the relevant requests themselves.  Note that personal information about a FOIA requester, such as a home address or telephone number, is likely to withheld.  

FOIA News: Immigration judges compromised by inadequate redactions

The DOJ Accidentally Doxxed These Immigration Judges

The Department of Justice thought it had adequately redacted the names of immigration judges involved in complaints in a recent response to a FOIA request. It didn’t, and now it might be sued.

By Betsy Woodruff, The Daily Beast, Jan. 24, 2017

In the final days of the Obama administration, an immigration attorney based in Long Island made a remarkable discovery: that the Justice Department accidentally doxxed some of its most powerful employees.

The mistake has implications for a Freedom of Information Act lawsuit the department is embroiled in, and it could get the DOJ sued by judges it employs. On top of that, it also has the potential to change the way we think about how the government decides who gets deported.

This mistake happened in early 2015, when the Justice Department released a trove of heavily redacted documents on complaints filed with the department about immigration judges.

Read more here.