Am. Ctr. for Law & Justice v. U.S. Dep't of State (D.D.C.) -- concluding that "no evidence" supported plaintiff's claim that agency had policy or practice of forcing FOIA requesters to file suit in order to obtain records, and that agency's disavowal was supported by "hard data corroborating its claim that it must handle immense FOIA obligations with limited resources."
Summaries of all opinions issued since April 2015 available here.
How #ReleaseTheMemo Could Undermine DOJ in FOIA Cases
Cogan Schneier, Nat'l Law Journal, Jan. 30, 2018
If President Donald Trump authorizes the release of a House Republican-drafted memo alleging FBI misconduct, the action could undermine the government’s silence in some Freedom of Information Act cases.
House Intelligence Committee Republicans voted Monday to release the classified memo, which is reportedly based off classified material provided to the committee by the Justice Department. It’s expected to indicate DOJ officials improperly reauthorized a warrant application to spy on former Trump campaign associate Carter Page. The application reportedly referenced information from the now-infamous Trump Dossier.
[. . .]
Bradley Moss of the Law Office of Mark S. Zaid in Washington, D.C., said Trump’s explicit authorization for the memo’s release, and the fact that it’s based on DOJ material, could amount to “official acknowledgement” of the records some of his clients are suing for, including the FISA application and a summary of the dossier.
That would mitigate federal agencies’ refusal to confirm or deny the existence of certain records. Moss said the situation presents a unique legal wrinkle when it comes to FOIA cases.
“There’s no real precedent here,” Moss said. “This is going to be uncharted waters.”
Read more here (registration required).
State Dept watchdog may investigate political retaliation claims after CNN report
Laura Koran & Elise Labott, CNN, Jan. 30, 2018
A government watchdog is assessing allegations of retaliation against State Department employees after CNN reported last week that multiple staffers had retained attorneys to represent them over concerns they had been assigned to low-level jobs because of their involvement in executing policies that are unpopular with the current administration.
[. . .]
Sarah Breen, a spokeswoman for the State Department Inspector General's office, told CNN the office received the letter and was "conducting preliminary work at this time" to "assess the allegations."
Read more here.
The Freedom of Information Act and Mr. Trump's EPA
Michael Lemov, The Hill, Jan. 29, 2018
When the Freedom of Information Act was passed five decades ago, Congress did not see it as an environmental protection law. But the present frenzy of the Trump administration’s efforts to slash federal regulations, primarily those designed to protect the air we breathe and the water we drink and to eliminate the toxic chemicals that can kill us, may well open a new chapter for the 51 year old FOIA. It may, in fact, have already become a crucial environmental protection weapon.
[. . .]
The prime weapon of the press and public groups is the fifty-one year old Freedom of Information Act. It was passed by a legislative coalition of Democrats and Republicans over the fierce opposition of four presidents, of both political parties. Those chief executives argued that an opening up government records would invade the powers of the president, impair the operation of the executive branch and, surprisingly, aid the Russians (then known as the “Communist Threat”).
FOIA arose out of the “McCarthy era” and the Cold War, a time filled with fear of Russia and Communism and marked by government abuses and mandated secrecy.
It took 12 years of intense struggle to enact the open government law. The fight was led by a young California congressman named John E. Moss, who had been tarred as a “red” himself as a as a candidate for Congress.
FOIA was one of the first laws worldwide to attempt to force transparency on reluctant chief executives. Today that includes the secretive President Trump and his EPA Administrator Scott Pruitt.
Read more here.
By Barbie E. Keiser, Information Today, Jan. 30, 2018
During the quarterly meeting of the Federal Freedom of Information Act (FOIA) Advisory Committee—which is part of the Office of Government Information Services (OGIS)—on Jan. 16, the participants weighed in on recommendations from subcommittees in preparation for drafting a final report to the Archivist of the United States, David S. Ferriero. The recommendations are the result of research conducted throughout the committee’s 2-year term of office (2016–2018) as its members sought practical ways to improve federal agency FOIA operations. The approved recommendations—concerning decisions agencies make to proactively disclose records, efficiencies agencies can achieve in processing FOIA requests, and measures agencies can take to improve the search for requested records—will now be combined into a final report to be voted on during the committee’s April 17 meeting.
Read more here.
Some State Dept. employees retaining lawyers amid career concerns: report
Max Greenwood, The Hill, Jan. 26, 2018
Several State Department employees are retaining lawyers amid concerns that their careers are now being stalled because of past work on policies and initiatives championed by former President Obama.
According to a Friday CNN report, frustration is growing among some at the department, who returned to Foggy Bottom from high-level assignments only to be put on low-level jobs such as responding to Freedom of Information Act (FOIA) requests.
Read more here.
* * *
Exclusive: Lawmakers want answers after State Department employees claim 'political retribution'
Elise Labott, CNN, Jan. 27, 2018
Key Democratic lawmakers are calling on the State Department's watchdog to conduct an "immediate review" of personnel practices after a number of employees told CNN they were unlawfully targeted for political reasons due to their work under the last administration.
The employees had been reassigned from their areas of expertise to help clear the backlog of Freedom of Information Act requests, which Secretary of State Rex Tillerson has designated as a priority. The employees regarded the move as retaliation.
Read more here.
IRS Escapes FOIA Suit Over Tax Attorney's Document Request
David Hansen, Law360, Jan. 26, 2018
A federal judge on Thursday granted summary judgment to the Internal Revenue Service and rejected a tax attorney's Freedom of Information Act request for documents on his disciplinary case, ruling the materials were privileged because they revealed internal agency deliberations.
The documents sought by Bradley S. Waterman fell under FOIA Exemption 5, which allows agencies to shield documents protected from discovery by privilege or an evidentiary hearing, U.S. District Judge Richard J. Leon said.
Read more here (subscription required).
Copy of case here.
Whitney v. DOJ (D. Ark.) -- dismissing case because plaintiff failed to specify where requested case records would likely be maintained and it would be unreasonable burdensome for government to search offices in all federal districts.
Summaries of all opinions issued since April 2015 available here.
Waterman v. IRS (D.D.C.) -- concluding that: (1) IRS properly relied on Exemption 5 to withhold memoranda concerning investigation into plaintiff's alleged misconduct; and (2) IRS relied on Exemption 6 to withhold email addresses and telephone numbers of agency employees.
Elliott v. GSA (D.D.C.) -- holding that agency performed adequate search for records of a building that it did not own.
Summaries of all opinions issued since April 2015 available here.
The National Indian Gaming Commission ("NIGC") published a final rule implementing new FOIA regulations in today's issue of the Federal Register. The changes are intended to bring the agency's regulations into conformity with the FOIA Improvement Act of 2016 and other authorities.
The NIGC published a proposed rule on October 17, 2017. Public comments were critical of the agency's decision to remove its regulatory definition of a "record." In response, the NIGC agreed that a definition should be reintroduced, but not the previous one, which had been taken from the Federal Records Act. Instead, the NIGC decided to adopt the Supreme Court's definition in Department of Justice v. Tax Analysts, 492 U.S. 136 (1989).
The new regulations are effective February 26, 2018.