Court opinions issued Jan. 19, 2018

White v. DOJ (S.D. Ill.) -- holding that: (1) plaintiff constructively exhausted his administratively remedies when he mailed complaint from prison, which predated government's FOIA responses; (2) liberally construed in pro se plaintiff's favor, complaint articulated challenge to adequacy of Bureau of Prison's search; and (3) government's conduct in litigation did not warrant sanctions.     

Judicial Watch v. U.S. Dep't of State (D.D.C.) -- ruling that agency performed reasonable search for copy of legal determination as to whether emails of former Secretary of State Clinton dated January-April 2009 were official State Department records.

Am. Civil Liberties Union Immigrants' Right Projects v. U.S. Immigration & Customs Enforcement (N.D. Cal.) --  awarding attorney's fees and costs to plaintiff, but reducing requested amount for fees incurred prior to litigation, excessive time drafting the complaint; and block billing.

Summaries of all opinions issued since April 2015 available here.

Court opinions issued Jan. 18, 2018

Am. Civil Liberties Union of N. Cal. v. DOJ (9th Cir.) -- affirming in part and reversing in part district court's decision and ruling that only portions of internal guidance for prosecutors was exempt as attorney work product and that none of disputed records were protected by Exemption 7(E).

People for the Ethical Treatment of Animals v. USDA (D.D.C.) -- finding that: (1) Department re-posted three categories of disputed animal welfare records on its website, which mooted plaintiff's claim for injunctive relief; (2) as to remaining records that Department did not re-post, plaintiff failed to show that Department was required to post them under statute's "reading room" provision. 

Summaries of all opinions issued since April 2015 available here.

FOIA News: Recap of FOIA Advisory Committee meeting

Advisory Committee Puts Forward Unanimous Recommendations to Improve FOIA

Office of Gov't Info. Serv. Blog,  Jan. 17, 2018

On January 16, 2018 the FOIA Advisory Committee voted unanimously* in support of several recommendations to improve the administration of FOIA. Members of the three Subcommittees – Proactive Disclosure, Efficiency and Resources, and Searches – spent a little over a year researching issues and developing these recommendations.

*  *  *

During the meeting, the Committee discussed and voted to support four proposals from the Proactive Disclosures Subcommittee. The aim of the proposals is to:

• increase the release of agency FOIA logs in a way that is most useful to improving understanding of agency records and how the law is being used;
• provide agencies with criteria for setting priorities for proactive disclosure;
• give agencies a guide to categories of records that should be regularly released based on the ease of making them available and their importance for understanding the government’s actions; and
• address requirements that documents on agency’s FOIA websites are accessible to individuals with disabilities.

Read more here. 

Court opinion issued Jan. 17, 2018

Kaye v. DHS (S.D.N.Y) -- finding that DHS properly withheld witness statement in immigration-related matter pursuant to Exemptions 7(C)), 7(D), and 7(F) and discounting relevance of plaintiff's assertion that he deduced the witness's identity.  

Summaries of all opinions issued since April 2015 available here.

FOIA News: CREW & FFRF sue HUD over FOIA requests concerning White House Bible Study, Visits to Museum of the Bible

Atheist and Federal Watchdog Groups File Lawsuit Over Ben Carson FOIA Rejections

Hemant Mehta, Patheos, Jan. 18, 2018

The Freedom From Religion Foundation and Citizens for Responsibility and Ethics in Washington (CREW) are suing the Department of Housing and Urban Development, led by Dr. Ben Carson, for denying their multiple Freedom of Information Act requests that may have cast a negative light on the agency and Carson in particular.

For example, the groups wanted to learn more about Carson’s involvement in the White House’s weekly Bible study sessions which first came to light last August. Were taxpayer-funded resources used for these sessions? It’s a legitimate question. But for some reason, whenever they asked HUD for information about these sessions, they couldn’t get the materials they requested.

Read more here.

FOIA News: State Dep't extends efforts to reduce FOIA backlog

Tillerson’s ‘FOIA surge’ extended in another blow to morale 

The State Department has extended by 90 days a tedious push to clear a public records backlog that has pulled in some longtime employees "against their will."

By Nahal Toes, Politico, Jan. 18, 2018

Secretary of State Rex Tillerson is extending by 90 days his unusual effort to clear the State Department’s huge backlog of public records requests—a project that has saddled some career diplomats and civil servants with mundane clerical tasks that they call demoralizing and possibly even designed to make them quit.

The decision was announced in a Jan. 5 email to State officials that was shown to POLITICO. It comes as conservative groups such as Judicial Watch continue to press the department to release more of former Secretary of State’s Hillary Clinton’s emails under the Freedom of Information Act, or FOIA.

Read more here.

FOIA News: DOJ releases its 2017 annual report

The Department of Justice's annual FOIA report for fiscal year 2017 is now available on the Office of Information Policy's website.  Here are some top line numbers:

Requests received: 82,088

Requests processed: 79,390

Backlogged requests:  12,863

Appeals received: 3,192

Appeal processed: 3,270

Backlogged appeals:  172

Litigations costs:  $13.6 million

Agencies were required to submit their annual FOIA reports to OIP by November 20, 2017.  

FOIA News: MuckRock Discusses the Value of CIA Exemption Codes

Guerrilla FOIAfare: How to use exemption codes to find the most interesting documents hidden in the CIA archives

Emma Best, MuckRock, Jan. 17, 2018

As many researchers have learned over the years, government agencies in general and the Central Intelligence Agency in particular often apply exemptions very broadly, and, at times, in ways that border on the ridiculous. Exemption codes, on the other hand, can still be useful to researchers, journalists, and curious citizens - by searching for these codes, clever researchers can find documents that discuss war plans, cryptography, WMDs, and diplomatically damaging information.

Read more here.

FOIA News: Recap of Jan. 16 FOIA Advisory Committee Meeting

Advisory Committee Puts Forward Unanimous Recommendations to Improve FOIA

Nat'l Archives & Records Admin., The FOIA Ombudsman, Jan. 17, 2018

On January 16, 2018 the FOIA Advisory Committee voted unanimously* in support of several recommendations to improve the administration of FOIA. Members of the three Subcommittees – Proactive Disclosure, Efficiency and Resources, and Searches – spent a little over a year researching issues and developing these recommendations.

The FOIA Advisory Committee brings together agency FOIA professionals and requesters to identify the greatest challenges in the implementation of FOIA and to develop consensus recommendations to address these issues. The Committee’s membership reflects the diversity of the FOIA community – including representatives of Cabinet-level and independent agencies, journalists, historians, academics, commercial requesters, open government advocates and others.

Read more here.

FOIA News: HUD's Tech Infrastructure Leads to FOIA Delays

At HUD, it takes too long to find electronically stored documents and data

Tajha Chappellet-Lanier, FedScoop, Jan. 17, 2018

Submit a Freedom of Information Act request with the Department of Housing and Urban Development, and the agency is legally mandated to respond to the request for documents within 20 business days.

However, a recent inspector general’s evaluation found that HUD might struggle with this task — the agency’s tool for finding these documents, its E-Discovery Management System (EDMS), is just too slow. In a moderately redacted version of the evaluation posted online, the IG lays out the reasons why HUD struggles to find electronic documents in a timely manner.

The evaluation, initiated “to determine whether HUD’s EDMS has the capacity to meet customers’ demand,” ultimately concludes that the EDMS does not fulfill its job. A FOIA request is just one reason that HUD officers may be looking for electronic documents, or “electronically stored information” (ESI), as the report calls it. Other offices as well, such as the Office of General Counsel and the Office of the Inspector General, might find themselves needing to collect internal emails, word documents, spreadsheets and more.

Read more here.