FOIA News: FOMC finalizes rule amending FOIA regulations

The Federal Reserve System's Federal Open Market Committee ("FOMC") finalized its interim final rule amending the agency's FOIA regulations in today's issue of the Federal Register.  The changes are required to comply with the FOIA Improvement Act of 2016.  Other minor technical modifications were introduced, too.  FOMC received one comment from the Office of Government Information Services.  The new FOIA regulations are effective November 1, 2017.

Court opinions issued Sept. 28, 2017

Agrama v. IRS (D.D.C.)-- determining that agency properly relied on Exemption 7(A) to withhold all disputed records pertaining to investigation of plaintiff's tax payments.

Ctr. for Biological Diversity v. EPA (D.D.C.) -- finding that: (1) agency failed to perform reasonable search for records concerning pesticide product; (2) agency properly withheld personal phone number pursuant to Exemption 6; (3) agency failed to demonstrate propriety of withholdings made under Exemption 5; and (4) plaintiff failed to show that agency had pattern of practice of disregarding FOIA response deadline or neglecting to provide estimated completion dates.

Codrea v. ATF (D.D.C.) -- ruling that agency's failure to release records until plaintiff filed lawsuit was insufficient to establish plaintiff's eligibility for attorney's fees. 

Alford v. Dep't of Veterans Affairs (D.D.C.) -- concluding that: (1) agency failed to perform adequate search for a portion of plaintiff's vocational rehabilitation case records; (2) plaintiff exhausted his administrative remedies with respect to request for certain email; and (3) plaintiff was eligible and entitled to award of $400 filing fee for lawsuit, noting agency's "unreasonable intransigence" and "numerous unforced errors."  

Summaries of all opinions issued since April 2015 available here. 

Court opinions issued Sept. 27, 2017

Am. Civil Liberties Union v. DOD (S.D.N.Y.) -- ordering government to release additional portions of six of nineteen documents concerning CIA's detention and interrogation program after finding Exemptions 1, 3, and 5 did not protect them. 

Alliance Defending Freedom v. IRS (D.D.C.) -- concluding that agency performed an adequate search for records pertaining to Treasury Regulations § 301.7611-1 ("Questions and answers relating to church tax inquiries and examinations").

Edelman v. SEC (S.D. Cal.) -- determining that: (1) agency performed reasonable search for investigatory records concerning real estate investment trust; and (2) agency failed to demonstrate propriety of withholdings under Exemptions 4 and 5, which were justified by only speculative and conclusory statements.

Summaries of all opinions issued since April 2015 available here. 

FOIA News: CSHIB Proposes Revisions to FOIA Regulations

The Chemical Safety and Hazard Investigation Board published an interim final rule revising the agency's FOIA regulations in today's issue of the Federal Register.  These changes are intended to ensure consistency with the FOIA Improvement Act of 2016 and to introduce other updates.  The interim rule is effective immediately.  Comments will be accepted until October 30, 2017.

Court opinion issued Sept. 26, 2017

Cruz v. EOUSA (D.D.C.) -- deciding that government properly withheld certain records concerning plaintiff's criminal case pursuant to Exemptions 3, 5, 6, and "various subparts of exemption 7," which pro se plaintiff failed to oppose.  

Summaries of all opinions issued since April 2015 available here. 

FOIA News: DOJ Renews Bid To Kill FOIA Suit Over Siemens Monitoring

DOJ Renews Bid To Kill FOIA Suit Over Siemens Monitoring

By Jack Newsham, Law360, Sept. 27, 2017

The U.S. Department of Justice made new arguments Tuesday in its effort to finally end a Freedom of Information Act lawsuit over its refusal to release a monitor's reports on Siemens AG, telling a D.C. federal judge that releasing the records would hurt its ability to fight corporate crime.

The government’s renewed effort comes about six months after it won a partial victory against 100Reporters, a news outlet that sued to obtain reports and other information about compliance reforms Siemens undertook...

Read more here (subscription). 

FOIA News: Transparency Groups Send 2nd Letter About Congressional Interference with FOIA

Read the joint letter to members of the Bipartisan Legal Advisory Group of the U.S. House of Representatives here. Release below from Cause of Action Institute.

Signatories:

American Association of Law Libraries
American Society of News Editors
Association of Alternative Newsmedia
Associated Press Media Editors
Cause of Action
Citizens for Responsibility and Ethics in Washington
Demand Progress
Federation of American Scientists
Government Information Watch
National Security Archive
OpenTheGovernment
Project On Government Oversight
Protect Democracy
Reporters Committee for Freedom of the Press
Sunlight Foundation

***

Cause of Action Institute signed a letter yesterday, joining a broad coalition of government transparency advocates, warning members of the Bipartisan Legal Advisory Group of the U.S. House of Representatives about the dangers of mounting congressional interference with the Freedom of Information Act (“FOIA”) and, specifically, continued efforts to expand the definition of “congressional records” not subject to disclosure. The letter comes in the wake of the House Committee on Ways and Means’ motion to intervene in a lawsuit filed by American Oversight, a left-leaning government transparency group.

The letter reiterates much of the argument found in a May 2017 coalition letter urging Jeb Hensarling, the Chairman of the House Financial Services Committee, to rescind his directive that federal agencies treat any and all records exchanged with the Committee as exempt from the FOIA. As I have previously discussed, the mere fact that an agency possesses a record that relates to Congress, was created by Congress, or was transmitted to Congress, does not by itself render it a “congressional record.” The law instead requires that Congress manifest clear intent to maintain control over specific records to keep them out of reach of the FOIA.  Chairman Hensarling and the leadership of the Ways and Means Committee are pushing the boundaries of this legal requirement.

Cause of Action Institute continues to investigate Chairman Hensarling’s controversial, and legally dubious, attempt to frustrate public access to records of the Executive Branch’s dealings with Congress, as well as similar efforts undertaken at the Internal Revenue Service. The transparency community and the general public must remain united in protecting the spirit of disclosure and open government promised by the FOIA.

FOIA News: Interior Dept. Sued For Petroleum Institute Meeting Records

Interior Dept. Sued For Petroleum Institute Meeting Records

By Adam Lidgett, Law360, Sept. 27, 2017

A nonprofit government watchdog group on Wednesday hit the U.S. Department of the Interior with a federal lawsuit for allegedly refusing to hand over various records pertaining to a meeting that Interior Secretary Ryan Zinke had with the board of directors of the American Petroleum Institute.

Citizens for Responsibility and Ethics in Washington filed its complaint in D.C. federal court, saying that the DOI violated the Freedom of Information Act because it didn’t provide the group with all the documents it requested...

Read more here (subscription).

FOIA News: EEOC issues final FOIA regulations

The Equal Employment Opportunity Commission published a final rule today in the Federal Register that updates the agency's FOIA regulations in accordance with the FOIA Improvement Act of 2016.  The final rule incorporates changes recommended by the Office of Government Information Services after EEOC issued an interim rule on December 29, 2016.

FOIA News: NCPC Issues Technical Correction for FOIA Regulations

The National Capital Planning Commission yesterday published in the Federal Register a technical correction to its September 20th final rule for revised FOIA regulations.  These new regulations are effective October 20, 2017.