Court opinions issued May 31, 2017

Kuzma v. DOJ (2nd Cir.) (summary order) -- affirming district court's decision that FBI conducted adequate search for records concerning civil rights activist Ray Robinson and properly withheld certain records pursuant to Exemption 3, 6, 7(A), 7(C), and 7(D).

Animal Legal Defense Fund v. USDA (N.D. Cal.) -- denying plaintiffs' request for preliminary injunction compelling USDA to restore public access to documents removed from online reading room.  In reaching its decision, the Court concluded that FOIA does not provide a public remedy for reading-room violations and that plaintiffs did not exhaust administrative remedies.  The Court further concluded that Administrative Procedure Act claim was unlikely to succeed and that plaintiffs failed to demonstrate that they are likely to suffer irreparable harm or that the balance of harms weighs in their favor.

Summaries of all opinions issued since April 2015 available here.

FOIA News: Dep't of Transportation corrects Exemption 5 error in FOIA regs

The U.S. Department of Transportation has re-amended its FOIA regulations after learning that they misstated the scope of the deliberative process privilege.  In 2016, Congress prohibited agencies from relying on the privilege to withhold records that are 25 years old or older.  But DOT's regulations issued on May 5, 2017 reversed this statutory sunset provision, stating that the privilege "only applies to records created 25 years or more before the date on which the records are requested."  DOT's technical correction will appear in the June 5th edition of the Federal Register and is effective immediately.  

FOIA News: USDA removing animal welfare records from agency website

Blackout blackout: The latest in the USDA's ongoing attempts to stymie transparency

Delcianna J. Winders, Salon, May 29, 2017

More than two decades ago, with the aim of “foster[ing] democracy by ensuring public access to agency records and information,” Congress amended the Freedom of Information Act to require agencies to proactively post frequently requested records online. As the legislative history makes clear, the purpose of this mandate was to “prompt agencies to make information available affirmatively on their own initiative in order to meet anticipated public demand for it.”

Pursuant to this amendment, the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service began posting records online related to its enforcement of the Animal Welfare Act (AWA) — our nation’s most significant animal protection law. In doing so, the agency noted that it received more requests for these documents than for any other category of records and acknowledged that, given this frequency and “the continuing high interest from animal interest groups as well as the general public,” the law required such posting.

Despite this clear recognition of its legal duties, in a much–publicized move earlier this year, the agency abruptly took all of these records down from its website. Dubbed the #USDAblackout, the action was almost universally condemned, not just by animal advocates but also by more than 100 members of Congress and even those in the very industries regulated by the AWA and subject to the disclosures, including zoos, research institutions, and the pet trade. The takedown of the website was Orwellian — the agency claimed it was done “[b]ased on [its] commitment to being transparent [and] remaining responsive to [its] stakeholders’ informational needs.” But what has ensued since is perhaps even more surreal.

Read more here.

FOIA News: Why is access to public records so complicated?

Why Is Access To Public Records Still So Frustratingly Complicated?

Steven Melendez, Fast Company, May 31, 2017

Earlier this month, House Oversight Committee Chairman Jason Chaffetz wrote to the Federal Bureau of Investigation demanding former FBI director James Comey’s notes of conversations with President Trump.

Congress has wide discretion to investigate what it chooses, including the right to issue subpoenas demanding access to potential evidence. But Chaffetz isn’t the only one interested in reading Comey’s notes, which reports have indicated document the president attempting to influence the FBI’s investigation into Russian election interference. The American Civil Liberties Union and Electronic Privacy Information Center have both filed requests under the Freedom of Information Act for the documents.

“While we hope that Congress will be serious about its constitutional oversight role, we believe the issues raised by the Comey memos are so vital that the public should have access to them without delay,” wrote Hina Shamsi, director of the ACLU National Security Project, in a blog post.

Read more here.

FOIA News: Liberal Activists Are Bombarding Trump With New FOIA Lawsuits

Liberal Activists Are Bombarding Trump With New FOIA Lawsuits

Ethan Barton, The Daily Caller, May 31, 2017

Liberal activists are bombarding President Donald Trump with Freedom of Information (FOIA) lawsuits seeking to force the executive branch to release documents The Daily Caller News Foundation’s (TheDCNF) Investigative Group has learned.

More than 250 FOIA lawsuits have been filed against the Trump administration since the President’s Jan. 20, 2017, inauguration – a 27 percent increase from last year and a 61 percent increase compared to the same timeframe following former President Barack Obama’s 2013 inauguration, TheDCNF analysis found.

Read more here.

FOIA News: Media-Filed Suits Seek Records from the Trump Administration

Media-Filed Suits Seek Records from the Trump Administration

The FOIA Project, May 31, 2017

Numerous reporters and news organizations have already taken federal agencies to court seeking government records from the Trump administration. Details on all media-filed Freedom of Information Act (FOIA) lawsuits filed through the initial four months of the Trump administration are now available in the second edition of The Media List.

Forty-five new FOIA lawsuits filed by 60 media plaintiffs have been added since the December 1, 2017 edition was posted.

The complete Media List compiles information on each news organization and reporter since 2000 who filed a FOIA federal lawsuit. The updated list, with filings through May 19, 2017, now covers 436 media plaintiffs and provides current details about each suit.

Read more here.

FOIA News: DHS Provides New Insight into FOIA Processing

DHS Provides New Insight into FOIA Processing

Nat'l Archives, The FOIA Ombudsman, May 31, 2017

As you might have heard, the Federal government received a record-breaking number of FOIA requests in Fiscal Year (FY) 2016 – 788,769 requests. Did you know, though, that one of the more than 100 Federal agencies and departments that process FOIA requests accounts for almost 40 percent of that total? In FY 2016, the Department of Homeland Security (DHS) received 325,780 requests.

In addition to receiving an overwhelming amount of the FOIA requests sent to the Federal government, during FY 2016 DHS also handled about 40 percent of the requests processed by the federal government (DHS processed 310,549 of the 759,842 requests processed in FY 2016). DHS’s backlog – 46,788 – also accounts for about 40 percent of the FY 16 Federal government backlog.

Read more here.

Court opinion issued May 30, 2017

Envtl. Integrity Project v. EPA (D.C. Cir.) -- affirming district court's decision that EPA properly withheld confidential commercial information pursuant to Exemption 4, rejecting appellant's argument that Exemption 4 is superseded by Section 308 of the Clean Water Act.

Summaries of all opinions issued since April 2015 available here.

FOIA News: EFF Suing FBI for Records About Best Buy Geek Squad Informants

Why We're Suing the FBI for Records About Best Buy Geek Squad Informants

Electronic Frontier Foundation, May 31, 2017

Sending your computer to Best Buy for repairs shouldn’t require you to surrender your Fourth Amendment rights. But that’s apparently what’s been happening when customers send their computers to a Geek Squad repair facility in Kentucky.

We think the FBI’s use of Best Buy Geek Squad employees to search people’s computers without a warrant threatens to circumvent people’s constitutional rights. That’s why we filed a Freedom of Information Act (FOIA) lawsuit today against the FBI seeking records about the extent to which it directs and trains Best Buy employees to conduct warrantless searches of people’s devices. Read our complaint here [PDF].

EFF has long been concerned about law enforcement using private actors, such as Best Buy employees, to conduct warrantless searches that the Fourth Amendment plainly bars police from doing themselves. The key question is at what point does a private person’s search turn into a government search that implicates the Fourth Amendment. As described below, the law on the question is far from clear and needs to catch up with our digital world.

Read more here.

FOIA News: DOJ affirms that resignation letters of U.S. Attorneys are categorically exempt; no search or review required

Justice Department didn't read letters they refused to release

By Adam Silverman , Burlington Free Press, May 31, 2017

The Justice Department decided to keep secret on privacy grounds the resignation letters from nearly 50 U.S. attorneys ousted by the Trump administration without first reading any of the letters, public records show.

Justice Department lawyers in March denied a Burlington Free Press request under the federal Freedom of Information Act for copies of the letters, on grounds that the information in the documents was so "inherently personal" that they should be exempt from release.

But notes that Justice Department staff created while processing the FOIA request show their conclusion was based only on an assumption.

"The records being sought seem to be inherently personal and would be withheld," reads a section of the processing notes, which the Burlington Free Press obtained through a separate FOIA request. The analyst who first reviewed the request consulted with a supervisor, who agreed, according to the notes, "and advised to respond with a blanket denial."

Read more here.