FOIA News: Congress takes interest in agency employees using encrypted communications

Conservatives demanding details on federal workers' encryption use

By Andrew Restuccia, Politico, Feb. 14, 2017

They also contend that the use of encrypted messaging circumvents federal record-keeping laws — an argument Science Chairman Lamar Smith (R-Texas) echoed in Tuesday's letter.

"[T]he Committee is concerned that these encrypted and off-the-record communication practices, if true, run afoul of federal record-keeping requirements, leaving information that could be responsive to future Freedom of Information Act (FOIA) and congressional requests unattainable," wrote Smith, who organized the letter to the IG. The panel has jurisdiction over many cybersecurity issues.

Outside conservative groups have launched similar efforts.

Citing POLITICO's story, the Cause of Action Institute, a right-leaning watchdog group, filed a request under the Freedom of Information Act this month seeking EPA employees' communications using Signal. "The bottom line is: An encrypted app is basically a way to avoid transparency," Institute Assistant Vice President Henry Kerner said in an interview.
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"The public is entitled to know whether career federal government employees are engaged in partisan politics on the taxpayers’ dime," said Allan Blutstein, vice president of FOIA operations at America Rising.

Read more here.

FOIA News: DHS Seeks Quick Win In ACLU FOIA Suit Over Immigrant Kids

DHS Seeks Quick Win In ACLU FOIA Suit Over Immigrant Kids

By Kelly Knaub, Law360, Feb. 14, 2017

The U.S. Department of Homeland Security asked an Arizona federal court Friday to end a suit brought by the ACLU Foundation of Arizona over a freedom of information request related to allegations of abuse of immigrant children in federal custody, saying it has complied with the request.

In a motion for summary judgment, the DHS’s Office for Civil Rights and Civil Liberties said it conducted reasonable searches and handed over more than 30,000 pages of documents and 35 audio files, and withheld some information properly under Freedom of Information Act exemptions, in response to the ACLU’s request seeking records related to the alleged abuse of immigrant children in DHS custody since Jan. 1, 2009.

Read more here. (Subscription)

FOIA News: POGO and National Security Archive Hosting FOIA Survey

We Need You: Help Improve FOIA

By Sean Moulton, POGO, Feb. 14, 2017

Have you asked for records using the Freedom of Information Act (FOIA)? Have you worked for an agency fulfilling such requests? Either way, we could use your input. The Project On Government Oversight (POGO) and the National Security Archive are hosting a survey to collect input on how FOIA searches are done. Please take 10 minutes to fill out the survey if you have experience with FOIA, and forward it to anyone else you think could help.

The FOIA process can be complicated and contentious as requestors and agencies wrestle with delays, withholdings, redactions, and more. One of the first and most critical steps in processing every request is the search conducted to identify responsive records. Finding a document on your computer or on the internet might seem remarkably simple and straightforward, but searching for records across a federal agency can quickly become problematic.

Read more here.

FOIA News: Lawsuit aims to force USDA to repost scrubbed animal welfare records

Lawsuit aims to force USDA to repost scrubbed animal welfare records

By Meredith Wadman, Science, Feb. 13, 2017

Put the records back on the internet. That’s the demand made in a lawsuit filed today against the U.S. Department of Agriculture (USDA) by an animal law expert at Harvard University, together with the People for the Ethical Treatment of Animals (PETA) and several other animal welfare groups. The plaintiffs allege that USDA violated the federal Freedom of Information Act (FOIA) earlier this month when it removed thousands of animal welfare inspection reports and other records from a publicly accessible website.

“Our lawsuit seeks to compel the USDA to reinstate the records, which it had no right to remove from its website in the first place,” said Delcianna Winders, currently the Academic Fellow of the Harvard Animal Law & Policy Program, in a statement. “The government should not be in the business of hiding animal abusers and lawbreakers from public scrutiny."

Read more here.

FOIA News: NARA posts Merrick Garland's Department of Justice records

Hundreds of files concerning former U.S. Supreme Court nominee Merrick Garland are now available to the public on the website of the National Archives and Records Administration.  See Files of Associate Deputy Attorney General Merrick B. Garland, 4/1/1994 - 4/30/1997; Enclosure Files of Assistant Attorney General Merrick B. Garland, 1/1/1995 - 12/31/1995; and Subject Files of Assistants to the Attorney General, 1974 - 1994.  The published files were first made available to America Rising in response to its FOIA requests following Garland's nomination in March 2016. 

In sum, NARA processed and released more than 38,000 pages of records to America Rising in less than eight months -- a laudable effort by NARA personnel.  Among the records that might be of particular interest to FOIA practitioners are DOJ memos from 1980 that discuss FOIA litigation involving Henry Kissinger's papers.  Records reflecting higher-profile matters in which Merrick Garland took part include the U.S. boycott of the 1980 Olympics and the Oklahoma City bombing case.

Q&A: Proof of back pay

Q.  I filed a complaint with the Department of Labor regarding unpaid overtime wages.  After an investigation, the agency determined that I was actually due the unpaid overtime but decided not to pursue recovery on my behalf.  I asked the DOL for the total amount of wages due, but my contact refused to send me the information and directed me to the FOIA.  What does the FOIA have to do with obtaining my own personal records?

A.  The FOIA governs access to agency records, including anything created by the DOL during its investigation into your unpaid overtime.  While those records are about you, they are not, in fact, your "personal" records, at least not in the sense that you "own" them.  Consider visiting the DOL Wage and Hour Division's FOIA website, which has useful information about how to request copies of your investigative file.  Pay special attention to Privacy Act requirements, however, as a request for personal information needs a special statement attesting that you are who you claim to be.

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.

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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.