FOIA News: FRTIB Implements New FOIA Regulations

The Federal Retirement Thrift Investment Board published a final rule implementing new FOIA regulations in today's issue of the Federal Register.  The changes are meant to incorporate recommendations from the Office of Government Information Services and reflect amendments required by the FOIA Improvement Act of 2016.  The new regulations are effective immediately.

Court opinions issued May 25-26, 2017

May 26, 2017

The Few, The Proud, The Forgotten v. U.S. Dep't of Veterans Affairs (D. Conn.) -- concluding that: (1) agency failed to conduct an adequate search for certain records regarding compensation scheme for injuries caused to veterans by contaminated water at Marine Corps base; (2) agency failed to show that Exemption 6 applied to qualifications of agency employees.

May 25, 2016

Cause Action v. IRS (D.D.C.) -- determining that agency performed reasonable search for any records indicating that Executive Office of the President made unauthorized requests for tax return information.

Bloomgarden v. DOJ (D.D.C.) -- finding that plaintiff was entitled to attorney's fees and costs given the government's "obdurate behavior that unnecessarily prolonged [the] litigation, but reducing award from $154,885 to $45,518 because of limited success, duplicative efforts, and improper billing techniques. 

Summaries of all opinions issued since April 2015 available here.

FOIA News: Buzzfeed obtains 40 years of government employment records

We're Sharing A Vast Trove Of Federal Payroll Records

By Jeremy Singer-Vine, Buzzfeed News, May 24, 2017

Today, BuzzFeed News is sharing an enormous dataset — one that sheds light on four decades of the United States’ federal payroll.

The dataset contains hundreds of millions of rows and stretches all the way back to 1973. It provides salary, title, and demographic details about millions of U.S. government employees, as well as their migrations into, out of, and through the federal bureaucracy. In many cases, the data also contains employees’ names.

We obtained the information — nearly 30 gigabytes of it — from the U.S. Office of Personnel Management, via the Freedom of Information Act (FOIA). Now, we’re sharing it with the public. You can download it for free on the Internet Archive.

Read more here.

FOIA News: FOIA Lawsuits Reach Highest Level Recorded In 25 Years

FOIA Lawsuits Reach Highest Level Recorded In 25 Years

The FOIA Project, May 23, 2017

The latest available case-by-case records from the federal courts show that Freedom of Information Act (FOIA) lawsuits challenging the withholding of records have risen since President Trump assumed office. The number of recorded FOIA filings in April climbed to 63 – the highest level recorded for at least 25 years. And although the month is not complete, additional filings during May appear headed even higher with 60 new FOIA lawsuits already filed.

If the pace of FOIA filings during the first seven-plus months of this fiscal year continues at the same rate, FY 2017 will see upwards of 579 FOIA suits filed. This would be up from 512 such suits filed during the last fiscal year of the Obama Administration.

Read more here.

FOIA News: ICYMI, how to improve FOIA requests according to OGIS

Keep It Simple and Specific

OGIS Blog, May 17, 2017

Because we help resolve disputes between agencies and FOIA requesters, we see a broad sample of the kinds of requests that members of the public file with agencies. Seeing this range of requests also gives us a pretty good idea of what strategies seem to work well, and what seem to cause unintended problems.

One practice that seems to complicate requests is for a requester to put a lot of energy into describing why he or she wants the information.  One of the bedrock principles of the FOIA is that who you are or what you plan to do with the records is irrelevant – it has no bearing on whether an agency should release records to you (unless, of course, you are asking for your own records). In fact, unless you are asking for fees to be waived or to be categorized as a requester that is charged a minimal amount of fees (representative of the media, educational, or noncommercial scientific institution), or you seek expedited processing of your request, you are not required to tell the agency anything about yourself beyond your contact information.

Read more here.

FOIA News: U.S. Supreme Court declines to hear mug shot case

U.S. Supreme Court declines to hear Free Press mug shot case

By Todd Spangler, Detroit Free Press, May 22, 2017

The U.S. Supreme Court this morning declined to hear the Detroit Free Press' challenge of a ruling that allows law enforcement agencies to withhold criminal mug shots in federal cases.

Without comment, the justices included the case of Detroit Free Press v. Department of Justice among those it was declining to schedule for arguments, leaving in place a decision last year by the U.S. 6th Circuit Court of Appeals.

In that  decision — issued last July —  the appeals court ruled 9-7  to overturn its own 1996 decision in favor of the Free Press that had allowed booking photographs to be released publicly.

Read more here.

Court opinions issued May 17, 2107

Scudder v. CIA (D.D.C.) -- ruling that the CIA properly applied Exemption (b)(1) and adequately justified its segregability review where former CIA employee had requested copies of certain articles published in the CIA journal, Studies in Intelligence.

Katsiaficas v. CIA (D. Mass.) -- ruling that the CIA conducted an adequate search and properly applied Exemptions (b)(1) and (b)(3), in conjunction with Section 102A of the National Security Act and Section 6 of the Central Intelligence Act, to records concerning the United States government's long-term involvement in South Korea.

Summaries of all opinions issued since April 2015 available here.

Commentary: Special Counsel records

For future requesters who might be interested in the records generated by Special Counsel Robert Mueller, who was appointed by DOJ yesterday to oversee an investigation into Russian contacts with the Trump campaign, the following FOIA case involving former Special Counsel Patrick Fitzgerald's investigation into the Valerie Plame affair might be instructive:  Citizens for Ethics & Responsibility in Wash. v. DOJ, 658 F. Supp.2d 217 (D.D.C. 2009).    

In sum, the court held that DOJ properly withheld certain records pursuant to Exemptions 1, 3, 5 (deliberative process privilege), 6, and 7(C), but that it failed to demonstrate the applicability of Exemption 7(A) to "specific ongoing or reasonably anticipated law enforcement proceedings."  Requesters seeking Mueller's investigatory records will likely have to wait years, like CREW, until the government's investigation and any anticipated law enforcement proceedings moot Exemption 7(A).   

Court opinions issued May 16, 2017

Seavey v. DOJ (D.D.C.) -- finding that plaintiff was entitled to public interest waiver of duplication fees with respect to requested FBI records concerning anti-war movement in St. Louis in 1960s and 1970s.

Immigrant Def. Project v. DHS (S.D.N.Y.) -- granting plaintiff's reconsideration motion regarding adequacy of ICE's search for records related to agency's enforcement and arrest operations at homes and residences.

Broward Bulldog v. DOJ (S.D. Fla.) -- ruling that FBI performed adequate search for records concerning the 9/11 Review Commission, and that it properly withheld or redacted certain, but not all, 28 disputed documents.  

Summaries of all opinions issued since April 2015 available here.

FOIA News: A federal judge is skeptical of the US charging a journalist $174,000 for government data

A federal judge is skeptical of the US charging a journalist $174,000 for government data

By David Yanofky, Quartz, May 17, 2017

One big issue is whether and how much the government can charge me for this data. They say $174,000. I say $0.

Unlike the time limits in the FOIA, the law’s stipulations on fees are much more strictly followed. As a journalist, the law entitles me to have fees waived under FOIA so that I am responsible only for the direct cost of duplication—in this case, the cost of a CD or hard drive. But the US Commerce Department is of the opinion that the data I seek is exempt from FOIA because it is authorized to charge for it, and thus it is allowed to force me to pay full price.

Scott Sroka, an assistant US attorney, disputed that I was ever asked to pay the $174,000, arguing instead that I was only presented with an order form. “We don’t know” what the fees would be, he said.

But had I filled out the order form for the data I requested, it would have come to a total of about $174,000, according to the prices published on the International Trade Administration’s website.

Read more here.