Q&A: Illegal political leak?

Q.  I was a candidate in a recent election for public office.  My former employer, who was an opposing candidate, released a report from my personnel file through the FOIA.  According to everything I have read, it was illegal for him to release this report without my permission.  Is this correct?

A.  Probably not.  It is true that the Virginia FOIA authorizes an agency to withhold personnel records in response to a request, except for records of an employee's position, job classification, salary (if over $10k), and expense reimbursements (all of which must be disclosed).  The Virginia FOIA, however, does not prohibit the dissemination of personnel records to third parties in response to a request.  See, e.g., Virginia Freedom of Information Council, Advisory Opinion 28-01 (May 31, 2001).  For further guidance, you might wish to contact the Virginia Freedom of Information Council.

Court opinions issued Mar. 30, 2017

Mar. 30, 2017

Smith v. CIA (D.D.C.) -- rejecting agency's use of Glomar response in connection with request for line-item budget information reflecting support of Israel, because President Obama acknowledged  existence of records in 2015 public statement. 

Patino-Restrepo v. DOJ (D.D.C.) -- finding that: (1) Executive Office for U.S. Attorneys conducted adequate search for records concerning plaintiff's prosecution and properly withheld information pursuant to Exemptions 5, 6, and 7(C); (2) Immigration and Customs Enforcement conducted adequate search and properly withheld records pursuant to Exemption 6, 7(C), and 7(E); (3) Federal Bureau of Prisons conducted adequate search for records concerning plaintiff's incarceration and properly withheld information pursuant to Exemptions 6, 7(C), and 7(F); (4) Department of State conducted adequate search and properly withheld records pursuant to Exemptions 1, 5, 6, 7(A), 7(C), 7(E), and 7(F); and (5) DOJ Criminal Division properly withheld records pursuant to Exemptions 5, 6, 7(C), and 7(D); (6) Drug Enforcement agency properly withheld records pursuant to Exemptions 7(A), 7(C), 7(D), 7(E), and 7(F); and (7) FBI properly withheld records pursuant to Exemption 7(A).  

Harrison v. Exec. Office for U.S. Attorneys (S.D. Cal.) -- deciding that FOIA officer's telephone conversation with U.S. Attorney's office about existence of responsive records was insufficient to establish adequacy of search.

Summaries of all opinions issued since April 2015 available here.

Court opinions issued Mar. 29, 2017

Mar. 29, 2017

Pinson v. DOJ (D.D.C.) -- finding that FBI: (1) conducted adequate searches in response to five of nine contested requests; (2) properly withheld records under Exemptions 3, 7(C), and 7(D); and (3) failed to adequately explain the basis for withholding records pursuant to Exemption 7(A). 

Morley v. CIA (D.D.C.) -- ruling plaintiff was not entitled to attorney's fees concerning his request for certain Kennedy assassination records because agency's withholdings were reasonable.

Summaries of all opinions issued since April 2015 available here.

Q&A: Crash and burn?

 Q.  I sent photographs to Langley AFB in April 1998 that were forwarded to the safety office of the commander.  The materials were dated September 14, 1997, and I received a thank you letter from the commander. Can I request by FOIA or have any right to any report or review of my materials by the safety office?  The date is significant because it was the date that the F-117A stealth fighter crashed in Maryland.

A.  The Air Force might not still possess these records after two decades, but no harm in making a request.  For instructions on how to submit a request, see the Air Force's Freedom of Information Act web page.  

Court opinions issued Mar. 28, 2017

Smith v. Sessions (D.D.C.) -- concluding that FBI conducted reasonable search for records concerning plaintiff's criminal case, properly withheld information under Exemptions 5, 7(A), 7(C), and 7(E), and released all reasonably segregable information.

Judicial Watch v. DOD (D.D.C.) -- finding that government properly withheld five memoranda concerning raid, capture, and/or killing of Osama bin Laden pursuant to Exemption 1, Exemption 3 (National Security Act of 1947), and Exemption 5 (deliberative process, attorney-client, and presidential communications privileges). 

King v. DOJ (D.D.C.) -- ruling that: (1) Office of Solicitor General performed reasonable search for records concerning plaintiff's criminal case; (2) plaintiff failed to administratively appeal FBI's determination; (3) Drug Enforcement Agency performed reasonable search and properly withheld records under Exemptions 7(C), 7(D), 7(E), and 7(F); and (4) Executive Office for United States Attorneys improperly relied on mere existence of district court sealing order to withhold plaintiff's criminal case file.

Borda v. DOJ (D.D.C.) -- determining that Executive Office of United States Attorneys failed to show it performed adequate search for records concerning plaintiff's criminal case and failed to explain why non-exempt portions of plea agreements could not be released.  

Passmore v. DOJ (D.D.C.) -- ruling that: (1) FBI performed adequate search for requested email between plaintiff and his murder victim; (2) plaintiff was not entitled to waiver of fees associated with request; and (3) agency properly withheld responsive information under Exemptions 7(C) and 7(E). 

Thomas v. DOJ (D.D.C.) -- holding that Executive Office of United States Attorneys failed to adequately explain how the U.S. Attorney's Office for the District of Columbia searched for records concerning plaintiff's criminal case. 

Summaries of all opinions issued since April 2015 available here.

FOIA News: "Apparently you can FOIA Guam"

Apparently you can FOIA Guam

JPat Brown, MuckRock, Mar. 29, 2017

As part of a project to determine how much training came with the military gear the Pentagon was handing out to police departments, Dan Welch sent public records requests to all 50 states - and for the heck of it, Guam.

To our surprise, not only did Guam Police Department respond, but they were super chill about it …

Read more here.

FOIA News: FOIA March Madness Semifinals

FOIA March Madness 2017: Heading into the Semifinals

JPat Brown, MuckRock, Mar. 29, 2017

It’s week three of MuckRock’s bracket-style March Madness race to fill a FOIA the fastest, and while a few unlikely challengers are looking strong heading into the semis, an entire division is looking like their heart just isn’t into it.

Read more here.

FOIA News: OSC issues new FOIA regulations

The U.S. Office of Special Counsel published a final rule implementing new FOIA regulations in today's issue of the Federal Register.  The changes are in response to public comments received by the agency last year.  Among the changes are a clarification to consultation procedures, inclusion of a records retention obligation, and an updated definition of the representative of the news media fee category.  The new regulations are effective immediately.

Court opinions issued March 27, 2017

Am. Civil Liberties Union v. Nat'l Sec. Agency (S.D.N.Y.) --  finding that: (1) FBI, National Security Division (NSD), and CIA failed to perform adequate searched for requested records concerning Executive Order 12,333; (2) all Exemption 5 withholdings by Office of Legal Counsel (OLC) were proper, and some but not all Exemption 5 withholdings by CIA, NSD, and Nat'l Security Agency were proper; (3) all but one document was properly withheld under Exemptions 1 and 3 by NSD, CIA, Defense Intelligence Agency, FBI, NSA; and (4) OLC, FBI, and NSD properly withheld records pursuant to Exemptions 7(D) and (7(E).

Debrew v. Atwood (D.D.C.) -- determining that Federal Bureau of Prisons performed an adequate search for records concerning the promulgation of a disciplinary regulation.  

Iraqi Refugee Assistance Project v. DHS (S.D.N.Y.) -- ruling that agency properly relied upon Exemptions 5 and 7(E) to withhold portions of "trip reports" regarding refugee applicants.  

Summaries of all opinions issued since April 2015 available here.

FOIA News: OGIS offering dispute resolution training for FOIA professionals

Register Now for Dispute Resolution Training for FOIA Professionals on April 18th

OGIS Blog, Mar. 29, 2017

Did you know that dispute resolution skills can help you improve communication with not just FOIA requesters, but also with your agency colleagues, and even your friends and family? Register today for our April 18thDispute Resolution Skills for FOIA Professionals training session, where you can get hands-on experience with these valuable tools.

Read more here.