FOIA Advisor

FOIA News: FBI sued for records of Trump surveillance

FOIA News (2015-2023)Allan BlutsteinComment

USA TODAY seeks records of Trump surveillance

By Bill Theobald, USA TODAY, Apr. 4, 2017

USA TODAY has filed suit against the Department of Justice in attempt to obtain records of any FBI surveillance of Donald Trump or his top aides during the 2016 presidential campaign.

The lawsuit was filed early Tuesday in U.S. District Court for the District of Columbia by USA TODAY reporter Brad Heath under the Freedom of Information Act. It asks the court to force the FBI to turn over any records of surveillance "in their entirety." 

Heath sent an FOIA request to the FBI on March 6 but has received "no substantive response."

Read more here.

FOIA News: FOIA Isn't Being Used the Way You Think It Is

FOIA News (2015-2023)Ryan MulveyComment

FOIA Isn't Being Used the Way You Think It Is

"On the Media," WNYC, Mar. 31, 2017 (Audio)

The Freedom of Information Act, enacted in 1967 to make federal records accessible to the public, has widely been known as a means for journalists to obtain government data and demand accountability.

But a new study by data analyst Max Galka for FOIA Mapper shows that the majority of FOIA requests aren't made by journalists -- in fact, journalists only account for 7.6% of the requests. Bob talks to him about how FOIA is used by businesses, law firms, and even political party organizations to use government data for their own profit.

Listen here.

FOIA News: FOIA Search Survey

FOIA News (2015-2023)Ryan MulveyComment

FOIA Search Survey Results and Analysis

Swetha Karent, Nate Jones, and Sean Moulton, Nat'l Sec. Archive, Mar. 31, 2017

The National Security Archive and the Project on Government Oversight developed and circulated an online survey to both FOIA processors and requesters to better understand how agencies search for records requested under the Freedom of Information Act (FOIA).  The aim of this survey was to establish a foundation of knowledge on how agencies across government complete perhaps the most agency-unique, complicated, and time-consuming aspect of the FOIA process: finding the documents that have been requested under the law.

Read more here.

Court opinions issued Mar. 31, 2017

Court Opinions (2015-2023)Allan BlutsteinComment

Justice v. Mine Safety & Health Admin. (S.D. W. Va.) -- denying plaintiff's bid for attorney's fees and costs because he failed to show that disclosure resulted in public benefit or that agency withholdings were unreasonable.  

Judicial Watch v. U.S. Dep't of the Treasury (D.D.C.) -- ruling that Treasury performed a reasonable search for email between three agencies and Hillary Clinton's personal email address, rejecting plaintiff's argument that Treasury should have searched all employee email accounts instead of limiting to senior employees.

Smith v. CIA (D.D.C.) -- finding that: (1) CIA conducted adequate search for records concerning uranium shipments to Israel, and that agency justifiably declined to search its operational files; (2) agency properly withheld records pursuant to Exemptions 1, 3, 6, 7(C), and 7(E); and (3) circumstances did not allow plaintiff to amend Complaint in order to add DOJ as defendant. 

Shapiro v. CIA (D.D.C.) -- in case involving request to FBI for records concerning Nelson Mandela, determining that: (1) FBI properly relied on Exemptions 1, 3, 7(A), and 7(D) to withhold requested records, but did not justify all withholdings made pursuant to Exemptions 5, 7(C), and 7(E); and (2) FBI did not provide sufficient information to allow court to decide whether agency properly withheld certain records as nonresponsive to request.  Notably, the court stated that the FBI's general practice was consistent with D.C. Circuit precedence.  It further observed that "[i]f an agency was forced to turn over a full manual or entire report every time a single page contained a responsive term, the amount of time, labor, and cost that would be required to review this purportedly 'responsive' material for exemptions would be exponential, hindering the agency's ability to process multiple requests efficiently or allocate its resources effectively."

Hunton & Williams LLP v. EPA (D.D.C.) -- ruling that EPA, Army Corps of Engineers, and Department of the Army conducted adequate searches for records concerning an industrial site in California, but that none of them established the propriety of their withholdings pursuant to Exemptions 5 and 6.

Tushnet v. U.S. Immigration & Customs Enforcement (D.D.C.) -- concluding that ICE failed to conduct adequate search for various records concerning counterfeit apparel, and that agency failed to justify the applicability of Exemption 7(E) to industry guides used by agents to detect counterfeit apparel.

Summaries of all opinions issued since April 2015 available here.

Q&A: Illegal political leak?

Q&A (2015-2023)Allan BlutsteinComment

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

Court Opinions (2015-2023)Allan BlutsteinComment

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

Court Opinions (2015-2023)Allan BlutsteinComment

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&A (2015-2023)Allan BlutsteinComment

 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

Court Opinions (2015-2023)Allan BlutsteinComment

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.