FOIA News: New Private Prison FOIA Bill Introduced

Bringing Transparency and Accountability to Private Prisons

Jen Herrick, People for the American Way, Aug. 7, 2017

One of the hallmarks of the first six months of the Trump administration has been its dramatic walkback of the federal role in protecting the civil rights of communities of color—with Attorney General Jeff Sessions leading the charge as head of the Department of Justice. On voting rights, hate crimes, federal criminal law and mass incarceration, police reform, immigration, and general civil rights enforcement, Sessions has moved swiftly since his February confirmation to overhaul DOJ and take the agency in disturbing new directions. One of Sessions’ earliest acts was to make good on President Trump’s campaign rhetoric praising private prisons and bring them back to life in the federal correctional system. Sessions did so by ignoring a 2016 DOJ Inspector General finding that private prisons are less safe and secure and overturning an Obama directive that phased out their use.

It’s hard for Americans to know the full extent of the private prison problem because private prisons operate under a veil of secrecy by claiming exemption from public records laws that apply to government-operated facilities. Senator Ben Cardin of Maryland wants to do something about that, and on August 2 he introduced the Private Prison Information Act. People For the American Way joined OpenTheGovernment and more than two dozen other organizations on a letter that exposes the private prison transparency and accountability crisis and supports Senator Cardin’s legislation.

Read more here.

FOIA News: Former AG Lynch's Secret Email Alias

ACLJ FOIA Unmasks Former Obama Attorney General Loretta Lynch's Secret Email Alias

Jordan Sekulow, ACLJ, Aug. 8, 2017

The ACLJ has unmasked former Obama Attorney General Loretta Lynch’s secret email alias.

The ACLJ’s FOIA lawsuit against the Department of Justice (DOJ) into the clandestine meeting between former AG Lynch and former President Bill Clinton has uncovered the secret email account used by former Attorney General Lynch to conduct official DOJ business.

Late last week we obtained and published more than 400 pages of documents from the DOJ, including redacted talking points on the Clinton-Lynch meeting that the DOJ bureaucracy still refuses to allow the public to see – redacting numerous pages of draft and final talking points and statements developed for the Attorney General.

Now we’ve learned that less than an hour and a half after the first press inquiry into the secret meeting, AG Lynch herself was actually added into the discussion about the draft talking points under the alias “Elizabeth Carlisle, ecarlisle@jmd.usdoj.gov.”

Read more here.

FOIA News: CPSC finalizes new FOIA regulations

The Consumer Product Safety Commission published a final rule implementing revised FOIA regulations in today's issue of the Federal Register.  The rule is intended to conform agency policy to the FOIA Improvement Act of 2016, as well as update other procedures.  The agency made several changes to its proposed regulations based upon public comments from America Rising and Cause of Action Institute, as well as from "informal input" by the Department of Justice's Office of Information Policy.  The agency's new regulations are effective September 7, 2017.

FOIA News: MuckRock says CBP definition of “reasonably described” is unreasonable

Customs and Border Protection has a pretty unreasonably definition of “reasonably described”

By Curtis Waltman, MuckRock, August 7, 2017

On two recent CBP FOIA requests of mine, the agency crossed the line from frustration into absurdity. One of the requests was for CBP contracts with the Israeli forensic tech company Cellebrite, the other was for a contract with SNAP Inc., the maker of Snapchat, who recently sold a biometric identification system to CBP.

I located these respective contracts on the Federal Procurement Data System - an extremely useful tool if you need to locate information on a federal contract. Keenly aware of CBP’s reputation, I was careful to provide CBP with as much information as possible - these requests featured everything from contract ID numbers, to DUNS numbers, to dates and IDV numbers. Pretty much everything a federal agency could want to be able to locate a contract.

Or so I thought.

Almost five months later, CBP wrote to me “After careful review of your FOIA request … we have determined that your request is too broad in scope or did not specifically identify the records which you are seeking.”

Read more here.

FOIA News: FCC Hit With FOIA Suit Over Net Neutrality Comments

FCC Hit With FOIA Suit Over Net Neutrality Comments

By Kevin Penton, Law360, August 4, 2017

The Federal Communications Commission should release a set of records related to its internal analysis of why its online comment system slowed down in May shortly after comedian John Oliver railed on his TV show about the agency’s handling of net neutrality, a reporter has told a New York federal court.

Read more here (subscription).

FOIA News: D.C. Circuit refuses to accept waiver of FOIA rights

Divided D.C. Circuit concludes criminal defendant’s FOIA rights may not be waived in plea deal

By Jonathan Adler, Wash. Post, Aug. 5, 2017

On Friday, a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit concluded that a criminal defendant may not waive his or her right to obtain information about their case under the Freedom of Information Act (FOIA). The court’s decision in Price v. U.S. Dept. of Justice Attorney Office provoked a dissent and appears to be at odds with the decisions of several other courts, although no other circuit court has squarely addressed this question in a published opinion.

Read more here.

Court opinions issued Aug. 4, 2017

Price v. U.S. Dep't of Justice Attorney Office (D.C. Cir.) -- ruling in 2-1 decision that plea agreement waiving criminal defendant's FOIA rights "offends public policy and is therefore unenforceable."

Aguiar v. DEA (D.C. Cir.) -- vacating district court's decision because DEA failed to show that requested GPS software was not an agency record and failed to show that it adequately searched for administrative subpoenas that existed at time plaintiff submitted his request. 

Jordan v. U.S. Dep't of Labor (D.D.C.) -- determining that agency properly relied upon Exemption 4 to withhold certain email between company and agency administrative law judge because, among other things. the records contained privileged attorney-client communications.

Sharkey v. FBI (N.D. Ohio) -- determining that FBI conducted reasonable searches for assorted records concerning plaintiff and that he failed to exhaust his administrative remedies with respect to one of his requests.  

Summaries of all opinions issued since April 2015 available here.  

Court opinions issued July 31, 2017 to August 3, 2017

Aug. 3, 2017

Argus Leader Media v. USDA (D.S.D.) -- awarding plaintiff attorney fees and costs despite undisputed finding that agency had a reasonable basis for withholding certain food stamp program records pursuant to Exemptions 3 and 4.  See related news article. 

Aug. 2, 2017

Hall v. CIA (D.D.C.) -- deciding that: (1) CIA failed to demonstrate that its search for records pertaining to POW/MIAs from the Vietnam War era was adequate in all respects; (2) CIA properly invoked Exemption 1, but that Vaughn Index was deficient with respect to three documents; (3) CIA properly withheld records pursuant to Exemptions 3 and 5, noting that sunset provision of deliberative process privilege did not apply to this case; (3) Exemption 6 did not protect certain names of non-CIA employees because of substantial public interest in POW/MIA matters.    

Eakin v. DOD (W.D. Tex.) -- concluding that request for electronic files related to missing and unidentified veterans from World War II was not unreasonably burdensome.  In reaching its decision, the court noted that it could think of "few other government programs more solemn and worthy of public scrutiny than those tasked with ensuring that Americans who gave the last full measure of devotion in service to their nation are identified, returned home to their families or communities, and buried with honors."  Due to the volume of material, the court permitted DOD to make semi-annual productions over next four years.

July 31, 2017

Rios v. United States (D.D.C.) -- ruling that plaintiff properly certified his identity to Drug Enforcement Administration with respect to request concerning himself, and that DEA had waived its exhaustion of remedies defense regarding plaintiff's request concerning a third party.

Summaries of all opinions issued since April 2015 available here.  

FOIA News: Judge grants Argus Leader Media attorney fees in FOIA lawsuit

Judge grants Argus Leader Media attorney fees in FOIA lawsuit

By Jonathan Ellis, Argus Leader, August, 4, 2017

A federal judge has awarded Argus Leader Media nearly $70,000 in attorney fees after finding the newspaper “substantially prevailed” in a lawsuit against the United States Department of Agriculture.

The award comes after Argus Leader Media won a Freedom of Information Act lawsuit against the department last year. The newspaper sued the department in 2011 after the department refused to turn over five years of sales data for every business in the country that participates in the Supplemental Nutrition Assistance Program or SNAP, formerly known as food stamps.

Following the victory, the Food Marketing Institute intervened in the case, appealing the decision to the Eighth Circuit Court of Appeals. The appeal is pending.

Read more here.

FOIA News: FBI Loses FOIA Suit Over Program To Fire Gay Employees

FBI Loses FOIA Suit Over Program To Fire Gay Employees

By Vin Gurrieri, Law360, July 31, 2017

The FBI didn’t adequately search its records in response to a Freedom of Information Act request made by a civil rights group that sought information about a decades-long program that began in the 1950s under then-FBI Director J. Edgar Hoover to purportedly purge the agency of gays and lesbians, a Washington, D.C., federal judge ruled Friday.

Read more here (subscription).