FOIA Advisor

FOIA News: DOJ wins initial battle on OLC opinions

FOIA News (2017)Allan BlutsteinComment

Judge Paves Way for Challenges to DOJ Opinion Secrecy

By Britain Eakin, Courthouse News, Oct. 9, 2017

Resolving a transparency catch-22, a federal judge dismissed a case about legal opinions from the Justice Department but affirmed the power of courts to intervene in more specific circumstances.

The Campaign for Accountability brought the underlying complaint last year, accusing the government of failing to comply with what are known as the reading-room provisions of the Freedom of Information Act.

Though the Justice Department’s Office of Legal Counsel has made more than 1,300 of its opinions available to the public on its website, the campaign argued that FOIA’s reading-room provisions require affirmative production, without the need for a prior request.

Read more here.

Court opinions issued Oct. 2-Oct. 6, 2017

Court Opinions (2017)Allan BlutsteinComment

Oct. 6, 2017

Campaign for Accountability v. DOJ (D.D.C.) -- concluding that: (1) court has authority to issue broad, prospective injunction requiring Office of Legal Counsel to affirmatively produce to plaintiff legal opinions that are subject to reading-room requirement; and (2) plaintiff failed to identify ascertainable set of legal opinions that OLC has failed to make publicly available and index pursuant to reading-room requirement. 

Oct. 3, 2017

Thompson v. Sessions (D.D.C.) -- denying summary judgment to both parties because plaintiff failed to show he had standing to pursue a "policy or practice" FOIA claim and DOJ failed to negate or even to address the issue.

Oct. 2, 2017

Wheeler v. Mahar (N.D. Ga.) -- dismissing lawsuit against State Department because plaintiff's request for records concerning former President Barak Obama did not include Mr. Obama's written authorization. 

Summaries of all opinions issued since April 2015 available here

FOIA News: Government denies existence of Mar-a-Lago visitor logs

FOIA News (2017)Allan BlutsteinComment

Secret Service claims there are no Mar-a-Lago visitor logs

By Rebecca Savransky, The Hill, Oct. 5, 2017

A Secret Service official said there are no logs for President Trump's visitors at his Mar-a-Lago resort in Florida, Politico reported.

The official said in response to a Freedom of Information Act (FOIA) lawsuit that there is no system to keep track of everyone who visits Trump at Mar-a-Lago.

" and review of records confirmed that there is no system for keeping track of Presidential visitors at Mar-a-Lago, as there is at the White House Complex," Special Agent Kim Campbell wrote.

"Specifically, it was determined that there is no grouping, listing or set of records that would reflect Presidential visitors to Mar-a-Lago."

Read more here.

FOIA News: Border Patrol loses FOIA protection in border bill

FOIA News (2017)Allan BlutsteinComment

McSally strips BP freedom of information loophole from border bill

By Dylan Smith,, Oct. 4, 2017

U.S. Rep. Martha McSally pulled a provision that would have allowed CBP to evade FOIA laws from a border bill moving through the House on Wednesday, after broke the news about the measure the previous day.

Removing the Freedom of Information Act loophole was an "important issue to clear up," the Republican congresswoman said. "Transparency is an important part of governance."

No one has yet offered an explanation for the exemption being included in the bill in the first place.

Read more here.

FOIA News: SBA Revises FOIA Regulations

FOIA News (2017)Ryan MulveyComment

The U.S. Small Business Administration ("SBA") published a direct final rule to amend its FOIA regulations in today's issue of the Federal Register.  The changes are intended to implement statutory revisions introduced by the OPEN Government Act of 2007, the OPEN FOIA Act of 2009, and the FOIA Improvement Act of 2016.  Other changes are being made as a result of recent judicial decisions.  The rule is effective January 3, 2018 without further action, unless adverse comment is received.  All comments must be received by November 6, 2017.

FOIA News: Understanding FOIA Delay

FOIA News (2017)Ryan MulveyComment

Understanding FOIA Delay

Nat'l Archives & Records Admin., The FOIA Ombudsman, Oct. 4, 2017

One of the frustrations with the FOIA process that we hear about most frequently is the delay in an agency’s response to a request. Frequently, requesters contact us to ask why an agency has not responded within the 20 working days response time that is prescribed in the law. We understand that delays are extremely frustrating; unfortunately they are all too common at agencies that receive a large volume of requests and at agencies that are struggling to respond to a backlog of old requests.

To help requesters understand why an agency’s response may be delayed, we thought it might be useful to give you all a quick guide to where you can find statistics about an agency’s FOIA performance, and give you a few helpful hints on how to use these resources.

Read more here.

FOIA News: Congressman to file FOIA suit for Osprey records

FOIA News (2017)Allan BlutsteinComment

Congressman Jones files FOIA lawsuit regarding V-22 crash

By Mike McHugh, JAcksonville Daily News, Oct. 3, 2017

A North Carolina Congressman announced Tuesday that he was filing a lawsuit for all records related to an Osprey crash that killed 19 Marines.

U.S. House of Representative Walter B. Jones, NC-3, held a 22-minute press conference from Washington D.C. announcing the filing of a rare Freedom of Information Act request lawsuit seeking all records pertaining to the 2000 V-22 Osprey crash in Marana, Arizona. The families of the Osprey’s two pilots — Maj. Brooks Gruber and Lt. Col. John Brow — flanked the congressman in an outdoor press conference on Capitol Hill.

Read more here.

Court opinions issued Sept. 30, 2017

Court Opinions (2017)Allan BlutsteinComment

Judicial Watch v. U.S. Dep't of State (D.D.C.) -- ruling that: (1) agency properly invoked Exemptions 7(C) and 7(E) to withhold report of investigation concerning Secretary Clinton's IT Specialist; and (2) agency properly relied on Exemption 5 to redact portion of email between Secretary Clinton and General Petraeus concerning personnel decisions, but neither party was entitled to summary judgment as to redactions made pursuant to Exemption 6. 

Associated Press v. FBI (D.D.C.) --  holding that agency properly relied on Exemptions 1, 3, 7(E) to withhold identity of and price paid to technology vendor that assisted FBI in unlocking iPhone of suspected terrorist. 

Summaries of all opinions issued since April 2015 available here

Court opinions issued Sept. 29, 2017

Court Opinions (2017)Allan BlutsteinComment

Sheridan v. OPM (D.D.C.) -- holding that Office of Personnel Management properly relied on Exemption 7(E) to withhold computer files containing the source code for agency's Electronic Questionnaires for Investigations Processing (e-Qip) System.

Spataro v. DOJ (D.D.C.) -- deciding that: (1) FBI performed reasonable search for records concerning plaintiff's criminal case except with respect to certain documents housed in New Jersey facility damaged by Hurricane Sandy; (2) FBI properly relied on Exemption 6 and 7(C) to withhold records concerning law enforcement personnel and other third parties; and (3) FBI properly invoked Exemption 7(D) to withhold certain source information, but did not adequately explain basis for withholding source information pursuant to express assurances of confidentiality.

Digirolamo v. DEA (S.D.N.Y.) -- determining that: (1) Drug Enforcement Administration properly relied on Exemptions 7(C), 7(D), 7(E), or 7(F) to withhold records concerning plaintiff; (2) agency properly denied fee waiver request because disclosure would primarily benefit only plaintiff; (3) agency properly invoked Exemptions 6 and 7(C) to categorically withhold records about third parties.

Sarno v. DOJ (D.D.C.) -- ruling that: (1) Bureau of Alcohol, Firearms, Tobacco, and Explosives conducted adequate search for records concerning plaintiff's criminal case and properly withheld records pursuant to Exemption 7(A); (2)  DOJ's Tax Division performed adequate search and properly withheld records pursuant to Exemptions 3, 5, 6, and 7(C); (3) Executive Office for United States Attorneys properly invoked Exemption 3 to withhold grand jury records; (4) FBI properly withheld wiretap records pursuant to Exemption 3; (5) Internal Revenue Service properly withheld grand jury material pursuant to Exemption 3. 

Coffey v. BLM (D.D.C.) -- concluding that Bureau of Land Management did not perform reasonable search for records concerning sale of wild horses and burros, because agency neglected to produce multiple email attachments or to identify all locations where it searched for records.

Long v. ICE (D.D.C.) -- finding that: (1) government performed adequate search for snapshots of enforcement database used by Immigration and Customs Enforcement and Customs and Border Patrol; (2) government properly relied on Exemption 6 to withhold names and contact information of agency employees; (3) government failed to justify withholdings under Exemptions 7(C) and 7(E); and (4) evidentiary hearing would be required in lieu of further briefing. 

Goldstein v. IRS (D.D.C.) -- declaring that plaintiff failed to perfect certain but not all requests concerning tax examination file and return and return information of his father's Estate.

Goldstein v. TIGTA (D.D.C.) -- deciding that: (1) plaintiff's newly discovered evidence did not warrant relief under Rule 60(b); and (2)  Treasury Inspector General for Tax Administration properly relied on Exemption 3 to withhold certain records, but failed to justify its use of Exemption 7(C).

Summaries of all opinions issued since April 2015 available here


FOIA News: FFIEC adopts final rule revising FOIA regulations

FOIA News (2017)Ryan MulveyComment

The Federal Financial Institutions Examination Council ("FFIEC") published a final rule adopting revised FOIA regulations in today's issue of the Federal Register.  The agency published an interim final rule on July 3, 2017, but received no public comments.  The changes being introduced are required to comply with the FOIA Improvement Act of 2016.  The final rule is effective immediately.