FOIA News: Sen. Wyden (D-OR) enters FBI FOIA fray

U.S. senator asks FBI to explain plan to abandon FOIA requests by email

Dell Cameron, The Daily Dot, Feb 10, 2017 

The Federal Bureau of Investigation’s decision to stop responding to the public’s requests for agency records by email garnered widespread disapproval this week from journalists and freedom of information advocates. 

Now, a member of the Senate Select Committee on Intelligence is asking the FBI to reconsider its plan.

For years, the nation’s top law enforcement agency has allowed the public to request access to government documents via email under the Freedom of Information Act (FOIA)—a federal law whose underlying purpose is to combat government secrecy. Beginning on March 1, however, the FBI is shutting down its email account, directing solicitants instead to one of three other avenues for submission: a web portal, a fax machine, or standard mail.

In a letter on Friday, Sen. Ron Wyden, a Democrat from Oregon, urged the FBI to revise its new policy, which he interpreted as potentially placing an “unnecessary burden” on requesters, citing limitations of the FBI’s new online submission platform.

Read more here.

FOIA News: Second Circuit rejects appeal by prison companies to shield business information

Prison Companies' Bid to Withhold Documents Fails

By Mark Hamblett, NY Law Journal, Feb. 9, 2017

Two of the nation's largest private prison companies who handle immigration detention for the federal government have lost their bid to keep proprietary business information from being released.

The GEO Group Inc. and CoreCivic intervened to appeal a Freedom of Information Act ruling where civil liberties groups are seeking details about immigration detention practices, but the U.S. Court of Appeals for the Second Circuit found they lacked standing.

* * *

In July, Southern District Judge Lorna Schofield ordered the government to release details of its contracts with private prison corporations. She rejected its claim that the documents were shielded under FOIA Exemption 4 for trade secrets; and under Exemption 7(e) for information that would disclose techniques and procedures for law enforcement investigations or prosecutions.

The government declined to appeal, but Schofield stayed disclosure while allowing The GEO Group and CoreCivic (formerly Corrections Corp. of America) to intervene an appeal.

Read more here.

Court opinion issued Feb. 8, 2017

Competitive Enter. Inst. v. EPA (D.D.C) -- ruling that:  (1)  plaintiff's lawsuit was not prematurely filed, because agency's deadline to respond to appeal started when agency received emailed appeal, not when employee opened email two business days later; (2) agency performed a reasonable search for requested records concerning text-messaging by agency's former Administrator; (3) agency properly withheld certain records pursuant to the deliberative process, attorney-client, and/or work-product privileges, including public relations documents.

Summaries of all opinions issued since April 2015 available here.

Court opinions issued Feb. 7, 2017

Judicial Watch v. DOD (D.C. Cir.) -- affirming district court's decision that a memo concerning the release of Bowe Bergdahl was protected by the deliberative process privilege; rejecting plaintiff's argument that the agency expressly adopted it as a source of guidance. 

Braun v. FBI (D. Mont.) -- finding that magistrate did not err in determining that agency properly withheld records concerning plaintiff pursuant to Exemptions 3, 6, 7(C), and 7(E).  

Summaries of all opinions issued since April 2015 available here.

FOIA News: Cause of Action Institute Litigation on "Defining a 'Record' under FOIA"

Defining a "Record" under FOIA

By James Valvo, Cause of Action Institute, Feb. 8, 2017

The Freedom of Information Act has provided the public with access to federal agency records since the mid-1960s.  As hard as it may be to believe, the definition of a “record” is still not established.  There has been a great deal of litigation over the definition of an “agency record” (as opposed to, for example, a congressional record or a personal record), as those are the only types of records that are accessible through FOIA.[1]  But the antecedent question—what exactly is a “record”—has not been litigated.

The U.S. Court of Appeals for the D.C. Circuit recognized this gap in its important decision last year in American Immigration Lawyers Association v. Executive Office for Immigration Review (“AILA”).[2]  In that case, the circuit court held that agencies may not use “non-responsive” as a redaction tool to withhold information within an otherwise responsive record.  I discussed that issue in a previous post titled There is No Tenth Exemption.  The circuit court, however, did not define a “record” in that case.

Cause of Action Institute filed a FOIA request with the Department of Justice (“DOJ”) to determine how it would respond to AILA and how it would attempt to define a “record.”  We asked for an email chain that the agency had previously produced to us with most of the information redacted as non-responsive.  In making this second request, we specifically asked for the entire email chain and drew the DOJ’s attention to the AILA decision.  Instead of removing the offending “non-responsive” redactions, however, the DOJ contended that each email in the chain—and in fact each header of each email—was a separate record.  The agency then withheld those supposedly separate records as “non-responsive.”  Compare the full original here and the full re-produced record here.  This approach makes a mockery of AILA; so we filed suit. 

Read more here.

FOIA News: Amtrak issues final FOIA regs

The National Railroad Passenger Corporation (Amtrak') issued the final version of its FOIA regulations today after consideration of public comments.  Amtrak's amendments to its regulations incorporate changes required by the FOIA Improvement Act of 2016, and include updated language that aims to make the FOIA process easier for the public to navigate. The amended regulations will become effective March 10, 2017.

FOIA News: FBI to revise online FOIA system after criticism

FBI to lift restrictions on online FOIA system after reports it would ditch email, switch to fax

Andrew Couts & Dell Cameron, The Daily Dot, Feb. 7, 2017

The Federal Bureau of Investigation will lift all restrictions on its online system for filing public-records requests and limit the amount of personal information users must provide, an FBI spokeswoman told the Daily Dot on Tuesday.

Revelations concerning the expanded capabilities of the FBI's online records portal, which will launch on March 1, follow reports on Monday that the agency would no longer accept Freedom of Information Act (FOIA) requests via email and would further limit the types and volume of records that requesters could make online.

A terms-of-service agreement on the FBI’s website outlined restrictions for users of its online FOIA-submissions portal, dubbed eFOIPA. The terms stipulated that “not all requests” could be made through the portal and accepted requests would be limited to “events, organizations, first party requests (Privacy Act requests), and deceased individuals.” FBI emails and other types of agency correspondence, which are often requested under FOIA, were excluded from the list, indicating they could only be requested via fax or standard mail.

Read more here.

FOIA News: Lawsuit filed for EPA nominee's records

Watchdog group sues EPA chief over public records release

By Valerie Volcovici, Record Advocate, Feb. 7, 2017

A media watchdog group is suing to force U.S. President Donald Trump’s pick to head the Environmental Protection Agency to release records detailing his communications with energy companies ahead of a Senate vote to confirm his nomination.

The Center for Media and Democracy, represented by the American Civil Liberties Union, will file a lawsuit on Tuesday in an Oklahoma court against that state’s Attorney General Scott Pruitt, Trump’s nominee to become the top U.S. environmental regulator.

The group wants to force Pruitt to respond to more than four dozen “open records requests” that have been filed as far back as January 2015 to publish emails between his office and energy companies.

Read more here.

Court opinion issued Feb. 3, 2017

Buckovetz v. U.S. Dep't of the Navy (S.D. Cal.) -- concluding that Navy performed an adequate search for documents pertaining to sexual harassment complaint and properly withheld disputed page under Exemptions 6 and 7(C).

Summaries of all opinions issued since April 2015 available here.

FOIA News: FBI will stop accepting FOIA requests by email

FBI will revert to using fax machines, snail mail for FOIA requests

By Dell Cameron, The Daily Dot, Feb. 6, 2017

The Federal Bureau of Investigation (FBI) will implement a new policy next month likely to further frustrate people seeking public records under the Freedom of Information Act (FOIA).

At the beginning of March, the FBI will no longer accept FOIA requests via email. Instead, requesters will have to rely on fax machines and standard mail (“snail mail”) in order to communicate with the agency’s records management division. The agency will also accept a fraction of requests through an online portal, provided users agree to a terms-of-service agreement and are willing to provide the FBI with personal information, including a phone number and physical address.

The new procedure mirrors that of other agencies that intentionally rely on archaic technologies to process public records requests. The Central Intelligence Agency, for instance, only accepts records requests by fax, while the Defense Advanced Research Projects Agency (DARPA), which researches advanced technologies on behalf of the Pentagon, also ditched email a few years ago in favor of old-school fax machines. The FBI’s records division has also been known to use computers from the 1980s specifically to create technological roadblocks.

Read more here.