FOIA Advisor

FOIA News: 10th Circuit Rules on Contractor-Held Records

FOIA News (2018)Ryan MulveyComment

Contractor-Held Docs Not Covered by FOIA, 10th Circ. Rules

Daniel Wilson, Law360, Jan. 8, 2017

The U.S. Forest Service was not legally obligated under the Freedom of Information Act to cough up to an environmental group land swap agreement documents that were held by third-party contractors and never seen by the agency, the Tenth Circuit ruled Friday.

Although the disputed documents were created as part of contractual work for the Forest Service, they were neither created by nor used by the agency, and therefore were not “agency records” required to be provided to Rocky Mountain Wild Inc., a three-judge panel ruled [. . .]

Read more here (subscription required).

See copy of court opinion here.

Court opinions issued Jan. 4, 2018

Court Opinions (2018)Allan BlutsteinComment

Gatore v. DHS (D.D.C.) -- ordering in camera review after finding that agency's supplemental declarations failed to sufficiently explain whether agency released all non-exempt segregable material from asylum assessments.

James Madison Project v. DOJ (D.D.C.) -- ruling that: (1) FBI properly relied on Exemption 7(A) in refusing to confirm or deny the existence of synopsis of Trump-Russia Dossier and related records; and (2) CIA, NSA, and Office of the Director of National Intelligence properly withheld synopsis pursuant to Exemptions 1 and 3, and properly refused to confirm or deny existence of remaining records pursuant to same exemptions.  Notably, the court rejected plaintiff's arguments that statements made by President Trump and former executive branch officials precluded summary judgment in government's favor.      

Summaries of all opinions issued since April 2015 available here.


FOIA News: FOIAs filed for DOJ's police reform records

FOIA News (2018)Allan BlutsteinComment

Civil rights organizations ask for info on Justice Department’s police reform work

By Matt Zapotosky, Wash. Post,  Jan. 4, 2018 

A group of civil liberties organizations is asking the Justice Department to turn over documents on its efforts to expose and force changes at troubled police departments — efforts which have been significantly curtailed since Jeff Sessions took over as attorney general.

The NAACP Legal Defense and Educational Fund, Leadership Conference on Civil and Human Rights and the ACLU sent three Freedom of Information Act requests to the department Thursday — asking for documents on civil rights investigations and reform agreements with law enforcement agencies and all correspondence the department’s Community Oriented Policing Services office has had with those agencies and police unions.

Read more here.

FOIA News: MuckRock on FOIAing the Trump Administration

FOIA News (2018)Ryan MulveyComment

FOIAing the Trump Administration: resources for your 2018 requests

Frank Matt, MuckRock, Jan. 3, 2018

In 2017, FOIA requests contributed valuable oversight to the Trump administration. If you’re wondering where to start this new year, imitating successful requests is an easy way to get the ball rolling. 2017 also yielded many repositories of calendars, travel records, ethics pledges, and other documents that you can mine for FOIA request ideas. For the first week of 2018, we rounded up resources that can springboard your efforts to FOIA the Trump administration.

This year, hold the Trump administration accountable by filing a records request of your own with the agency, following MuckRock’s “FOIA the Trump Administration” project, and joining our Slack channel to share ideas and get help with your requests. If you have a Trump administration related FOIA you would like us to highlight, share it over emailTwitter, or Facebook and we may include them in the next roundup.

Read more here.

FOIA News: CREW files FOIA lawsuit over FBI texts

FOIA News (2018)Ryan MulveyComment

Watchdog sues DOJ over decision to show FBI texts to reporters

Morgan Chalfant, The Hill, Jan. 3, 2018

A government watchdog group is suing the Justice Department for documents related to its decision to show reporters private text messages between two FBI agents who were critical of President Trump.

Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit on Wednesday against the Justice Department for failing to respond to an expedited request for documents related to the “highly unusual, if not unprecedented” decision to host reporters at its offices to view the text messages.

Read more here.

Commentary: Top Exemption 4 decisions of 2017

Commentary (2018)Allan BlutsteinComment

The large majority of FOIA decisions issued each year resolve disputes concerning the adequacy of agency searches and/or the withholding of records on privacy, law enforcement, or civil discovery grounds.  Typically, only a small percentage of FOIA disputes involve Exemption 4, a provision that protects “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” But Exemption 4 cases are among the FOIA’s most legally complex and can have a big impact on a company’s bottom line and business practices.  As 2018 gets under way, Allan Blutstein looks back at some of the key Exemption 4 decisions issued over the past twelve months.    

Am. Small Business League v. DOD (9th Cir.) (unpublished)

In 2014, the Northern District of California ordered the Pentagon to release documents concerning Sikorsky Aircraft’s participation in the agency’s Comprehensive Small Business Subcontracting Plan.  In reaching its decision, the district court rejected as “not enough” Sikorsky’s declaration that the “‘[r]elease of the information . . . would cause substantial harm to the company’s competitive position,’ on the basis that a competitor ‘could’ use such information to assess the strengths and weaknesses of Sikorsky’s bid proposals to the agency.” 

On appeal, the Ninth Circuit reversed the district court and held that Sikorsky’s declaration “at least created a genuine issue of fact.”  The Circuit observed that Sikorsky had identified its competitors and averred that those competitors “could use the redacted information to gain a significant competitive advantage.  Nothing more is required to gain protection from disclosure under Exemption 4, and the district court erred in ruling otherwise.”

Frank LLP v. Consumer Fin. Prot. Bureau (D.D.C.)

In a decision otherwise favorable to the government, the court ruled that CFPB had an improper policy of treating records provided to it in response to civil investigative demands (CIDs) as "voluntarily" submitted -- and therefore entitled to greater protection -- for Exemption 4 purposes.  The court reasoned that such submissions should be treated as mandatory because CFPB possesses the legal authority to issue CIDs (which are functionally equivalent to administrative subpoenas), as well as the power to seek judicial enforcement if a CID is ignored.  Going forward, this ruling requires CFPB to evaluate whether releasing CID-obtained records will likely cause substantial competitive harm to the submitter, as opposed to evaluating whether the submitter customarily treats those records as confidential. 

Ctr. for Pub. Integrity v. U.S. Dep't of Energy (D.D.C.)

Here, the court rejected plaintiff’s novel argument that agencies are automatically precluded from invoking Exemption 4 to withhold records related to a corporation’s wrongdoing -- in this instance, illegal lobbying.  The court’s other notable ruling addressed whether the corporation's production of documents in response to an agency “notice letter” was voluntary or involuntary.  Although the agency component that possessed the legal authority to compel production did not author the notice letter, the court found that the agency's letter offered the corporation "no real choice" and that the "very real specter of government compulsion" was sufficient to render the production involuntary. 

Det. Watch Network v. U.S. Immigration & Customs Enforcement (2d Cir.), cert. denied 583 U.S. __ (2017)

The Second Circuit dismissed an attempt by private detention facility contractors to overturn the Southern District of New York’s 2016 decision that the unit prices, bed-day rates and staffing plans appearing in government contracts were not confidential.  Notably, the government declined to join the appeal and let stand the district court’s threshold finding that the negotiated contractual terms were not “obtained from a person” for Exemption 4 purposes, contrary to numerous decisions in multiple circuits.   

FOIA News: Complaints persist about FOIA processing

FOIA News (2018)Allan BlutsteinComment

Feds stiff-arm taxpayers’ requests for information

By Jeff Mordock, Wash. Times, Jan. 2, 2018

The federal Freedom of Information Act was supposed to give the public relatively quick and easy access to the very government documents their taxes paid for — but the system is increasingly broken, with some agencies still working on requests filed some 20 years ago.

At least five federal agencies have unfulfilled FOIA inquiries spanning more than a decade, according to a Washington Times review of two dozen of the largest agencies.

Despite recent initiatives to prevent FOIA requests from piling up, watchdogs who rely on it to hold the government accountable say nothing has changed.

Read more here.