Court opinions issued Jan. 30, 2017

James Madison Project v. Dep't of State (D.D.C.) -- holding that: (1) agency failed to perform  adequate searches for records relating to Hillary Clinton's private attorney; and (2) agency properly relied on Exemption 7(C) to withhold identity of agency's information security chief.  

Davis v. Dep't of Justice (D.D.C.) -- summarily agreeing that five DOJ components had performed adequate searches and justified their withholdings, issues that plaintiff, a pro se inmate, did not dispute.   

Summaries of all opinions issued since April 2015 available here.

FOIA News: FOIA requests on the rise

Surge in information requests, hiring freeze puts pressure on overburdened FOIA offices

By Meredith Somers, Federal News Radio, Jan. 30, 2017

The Environment Protection Agency collected about 200 Freedom of Information Act (FOIA) requests during the first week of the Trump administration, and more than 20 percent of them are about the new president, climate change, and social media.

Larry Gottesman, director of the national FOIA program at EPA, said his agency gets about 12,000 requests per year. According to FOIAOnline, since the beginning of October, the start of fiscal 2017, the EPA has received roughly 3,200 requests.

Gottesman said the uptick is the result of a new administration, and that the FOIA requests his office is collecting range from well wishes of support to questions about the nomination of Rex Tillerson as the new Secretary of State.

Read more here.

FOIA News: Magistrate recommends disclosure of border checkpoints

Judge backs ACLU in lawsuit over border checkpoints

By Howard Fischer, Capitol Media Services, Jan 28, 2017

A federal magistrate is chiding the Border Patrol for trying to hide certain information from the public about its sometimes controversial checkpoints.

In a 55-page recommendation, Bernado Velasco said there is no valid reason for the Department of Homeland Security to refuse to provide records about the location of its checkpoints. The American Civil Liberties Union wants that as part of a broader look into the practices of the Border Patrol in stopping vehicles.

Velasco also rebuffed the contention by Homeland Security that requiring it to divulge information on the nationality and skin complexion of those who are stopped at either fixed checkpoints or roving patrols would be "an unwarranted invasion of personal privacy.''

Read more here.

Court opinion issued Jan. 27, 2017

Rocky Mountain Wild v. U.S. Forest Serv. (D. Colo.) -- ruling that certain records maintained by third-party contractor were not "agency records" because Forest Service lacked "control" over them. 

Summaries of all opinions issued since April 2015 available here.

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.