FOIA News: More on congressional records; former OIP director weighs in

Effort to shield documents sparks transparency debate

By Geof Koss, E&E News  May 10, 2017

Are House Republicans conspiring with the Trump administration to evade a key federal open-records law? Or is Congress simply reasserting a long-standing legal prerogative it says is essential to conducting oversight of the executive branch?

It depends on whom you ask.

Since January, congressional staffers say they've begun to notice distinct signatures on emails sent to federal agencies from House addresses, which in effect state that the contents of the messages are not considered "agency records" for purposes of compliance with the Freedom of Information Act (FOIA).

Read more here.

FOIA News: Exemption 9 upheld in D.C. Circuit case

Oh, well. California water info can remain secret, court rules

BY Michael Doyle, Miami Herald, May 9, 2017

Crucial details about the location and depth of certain California water wells can be kept secret, and out of the hands of an environmental group, a top federal appeals court ruled Tuesday.

Although targeting a specific request for California information, the ruling by what’s sometimes called the nation’s second-highest court could shape at least a few of the other Freedom of Information Act requests nationwide. More than 700,000 FOIA requests were filed in Fiscal 2014, and the question of what can be denied recurs often.

Tuesday’s unanimous decision lumped water wells with those drilled for oil and gas production. The U.S. Court of Appeals for the District of Columbia Circuit said that the water well information fits under a long-standing exemption to FOIA. The decision thwarted AquAlliance, the Chico, Calif.-based group that sought the information.

Read more here.

FOIA News: FTC revises FOIA regulations

The Federal Trade Commission published a final rule implementing new FOIA regulations in today's issue of the Federal Register.  The changes are meant to implement the FOIA Improvement Act of 2016.  Specifically, the FTC is modifying its definition of a "representative of the news media" and its schedule of direct costs.  The agency is also making some other minor technical changes.  The FTC received two comments in response to its December 22, 2016 proposed rule.  Today's final rule is effective immediately.

FOIA News: HUD Corrects FOIA Regulations

The Department of Housing and Urban Development published a correction to its January 12, 2017 final rule implementing new FOIA regulations in today's issue of the Federal Register.  Specifically, the agency is correcting its inadvertent exclusion of three of the nine statutory FOIA exemptions, and its inclusion of a duplication exemption.  HUD is also making other minor technical changes.  The correction is effective immediately.

Court opinions issued May 8, 2017

Widi v. McNeil (D. Me.) -- reluctantly ordering EOUSA to perform segregability analysis on four pages of attorney work product documents and to clarify the nature of certain documents withheld under Exemption 7(C), but otherwise denying plaintiff's request for reconsideration.

Cameranesi v. U.S. Dep't of Def. (9th Cir.) -- in a two-to-one decision, affirming the district court's ruling that names of foreign students and instructors at the Western Hemisphere Institute for Security Cooperation (WHINSEC) are exempt from disclosure under Exemption 6.

Summaries of all opinions issued since April 2015 available here.

FOIA News: Government Watchdog Groups Say Congressman's FOIA Letters Set "A Troubling Precedent"

Government Watchdog Groups Say Congressman's FOIA Letters Set "A Troubling Precedent"

By Mary Ann Georgantopoulos, Buzzfeed News, May 9, 2017

A group of government watchdogs sent a letter to Congressman Jeb Hensarling Tuesday afternoon urging him to rescind the letters he sent government agencies informing them about Freedom of Information guidelines.

Hensarling, a Republican from Texas, sent letters in April to the heads of several federal agencies the House Financial Services Committee oversees, declaring that communications and documents produced between the two offices will remain in the committee's control and will not be considered "agency records" — therefore exempt from Freedom of Information Act (FOIA) requests.

Twenty organizations — including the American Civil Liberties Union, the Project on Government Oversight, and the Campaign Legal Center — signed on to a letter calling Hensarling's actions "a troubling precedent."

Read more here.

FOIA News: TRAC Challenges ICE's Abrupt Change in Disclosure Practices

TRAC Challenges ICE's Abrupt Change in Disclosure Practices

Transactional Records Access Clearinghouse (TRAC), May 9, 2017

The Transactional Records Access Clearinghouse (TRAC) has filed a suit under the Freedom of Information Act (FOIA) charging Immigration and Customs Enforcement (ICE) with unlawfully withholding records related to ICE's immigration enforcement actions and its interaction with other law enforcement agencies.

At issue are ICE's use of detainers. These are requests from ICE to federal, state, and local law enforcement agencies to hold immigrants in their custody and to turn them over to ICE for possible deportation. Under President Trump, the agency announced that it was making stepped up usage of detainers a cornerstone of its immigration enforcement strategy. The agency further threatened local jurisdictions with the withholding of federal funds if they failed to comply with ICE detainers.

Read more here.

FOIA News: FOIA Backlog Skyrockets at U.S. Citizenship and Immigration Services

FOIA Backlog Skyrockets at U.S. Citizenship and Immigration Services

The FOIA Project, May 8, 2017

The backlog of unprocessed FOIA requests to the U.S. Citizenship and Immigration Services (USCIS) continues to climb. In just a two-year period, the backlog of unanswered FOIA requests has tripled, climbing from 17,998 at the end of December 2014 to 46,550 at the end of December 2016. See Figure 1.

This means that countless requesters – including reporters, scholars, and those subject to immigration actions – are not getting the information they need to check against unlawful actions and to better hold the government accountable to the governed.

Read more here.

FOIA News: 14 Years Later, BOP Settles FOIA Lawsuit

Fourteen Years After Being Sued, Bureau of Prisons Finally Settles FOIA Lawsuit

Tim Cushing, TechDirt, May 9, 2017

A little less than two years ago, we covered Prison Legal News' FOIA lawsuit against the Bureau of Prisons. While we're aware litigation is seldom a swift process, PLN's ongoing lawsuit was particularly epic: twelve years after filing its initial requests for records covering a period from 1996-2003, the DC Appeals Court reversed the lower court's decision in favor of the US BOP and instructed it to order the government to hand over the requested records to PLN.

Two years after that ruling -- fourteen years after PLN sued -- the government is finally settling the case. The government Taxpayers will be paying out nearly a half-million dollars for more than a decade of government stonewalling and obfuscatory litigation.

Read more here.

FOIA News: The next front in the FOIA War: Congress blocking disclosure of its dealings with the Executive Branch

The next front in the FOIA War: Congress blocking disclosure of its dealings with the Executive Branch

By Ryan Mulvey, The Hill, May 8, 2017

Presidential interference with public access to politically sensitive agency records has been an ongoing fight that seems unlikely to end anytime soon, and now it appears Congress has decided to get into the game.  My organization, Cause of Action Institute (“CoA Institute”), has long been at the forefront of fighting against unlawful obstruction of the Freedom of Information Act (“FOIA”).  Last year, we filed a lawsuit against the Office of the White House Counsel to end the practice of “White House equities” review, which results in the delay of responses to FOIA requests that the administration deems politically embarrassing.  With that lawsuit still ongoing, Congress has taken a page from the White House’s playbook to keep records of its dealings with agencies hidden from public view, too.

BuzzFeed reported last week that Financial Services Committee Chairman Jeb Hensarling (R-Texas) sent a letter to the Treasury Department that directed the agency to treat all records exchanged with the committee as “congressional records” not subject to the FOIA.  Specifically, Hensarling claimed that any communications to the agency, and any “documents created or compiled” by Treasury “in connection with any responses” to Congress, could not qualify as “agency records,” regardless of whether they included a “legend” indicating how they could be used.  The chairman further claimed that all such records would be “subject to the absolute protections of the Speech or Debate Clause of the Constitution.”  Other sources indicate that Hensarling sent similar letters to other agencies, including the Consumer Financial Protection Bureau and the Federal Deposit Insurance Corporation.

Read more here.