FOIA News: House Oversight approves bill that would expand OGIS's access to FOIA records

Oversight panel advances records preservation, transparency bills

By Chase Gunter, FCW, Mar 19, 2018

The House Oversight and Government Reform Committee approved a slate of bills aimed at preserving electronic records, improving customer experience and posting more information online.

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Another Farenthold bill approved by the committee would make sure agencies make available records covered by the Freedom of Information Act to NARA's Office of Government Information Services upon request. OGIS is the Justice Department entity that generates governmentwide FOIA policy.

Read more here.

Court opinions issued Mar. 15-16, 2018

Mar. 16, 2018

Davis v. U.S. Dep't of Veterans Affairs (10th Cir.) -- affirming district court's decision that agency performed  reasonable search for records pertaining to plaintiff's claims for benefits and that agency did not withhold any responsive records. 

Mar. 15, 2018

Lopez v. NARA (D.D.C.) -- dismissing case because plaintiff failed to administratively appeal agency's decision before he filed lawsuit.  

Chase v. DOJ (D.D.C.) -- ruling that:  (1) Executive Office for United States Attorneys performed reasonable search for records concerning plaintiff's prosecution for possession of child pornography; (2) EOUSA properly relied on Exemption 3, in conjunction with Federal Rule of Criminal Procedure 6(e) and the Child Witnesses' Rights Act,  to withhold grand jury transcripts; (3) U.S. Marshals Service properly withheld records pursuant to Exemptions 7(C) and 7(E); and (4) EOUSA properly referred certain records to FBI, which properly determined that plaintiff was not entitled to waiver of duplication fees.  

Summaries of all opinions issued since April 2015 available here. 

Court opinion issued Mar. 14, 2018

Garcia v. EOUSA (D.D.C.) -- concluding that: (1)  government performed reasonable search for records concerning prosecution witness who testified against plaintiff, and (2) government properly withheld records pursuant to Exemptions 3, 5, 6, 7(C), 7(D), 7(E), and 7(F).

Summaries of all opinions issued since April 2015 available here. 

Q&A: Odds and ends

Q.  Why must tax-paying U.S. citizens wait for a FOIA request, which according to FOIA takes 3-6 months minimum, while non-tax-paying visitors to the U.S. have the option of an online I-94 form request that provides immediate access to records?

A.  The online form to which you refer was launched by the U.S. Customs and Border Patrol in 2014 and permits travelers to retrieve their I-94 arrival/departure record number and five-year travel history.  The I-94 system was automated in order to increase efficiency and streamline the admission process for the traveling public.  It appears as if holders of U.S. passports also are able retrieve their traveling histories.   

Q.  I sent a FOIL request to the New York County DA’s office and they said  that it would take three weeks.  That time has come and gone and I cannot get a definitive time frame for a response.  What can I do?

A.   If you believe the District Attorney's response to your FOIL request has been unreasonably delayed, you might consider submitting an administrative appeal to that office or asking for a written advisory opinion from the New York Department of State's Committee on Open Government.  The Committee has addressed the issue of delays in several advisory opinions.  See, e.g., https://docs.dos.ny.gov/coog/ftext/f18008.html.  If you ultimately wish to litigate the matter, I can only suggest that you confer with an attorney in New York.  

FOIA News: Millennium Challenge Corp. to update FOIA regs

The MCC has proposed amendments to its FOIA regulations, as outlined in a notice scheduled to be published in the Federal Register on March 19, 2018.  The agency's proposed rule addresses electronically available documents, procedures for making requests, agency handling of requests, records not disclosed, changes in fees, and public reading rooms, as well as other related provisions.

Comments are due by April 18, 2018.

FOIA News: EDF sues EPA for records of correspondence with conservative think tank

Trump EPA Sued Over Refusal to Release Heartland Institute Communications

Marianne Lavelle, Inside Climate News, Mar. 15, 2018

Two environmental groups filed suit Thursday to force the Environmental Protection Agency to disclose its correspondence with the Heartland Institute, a conservative think tank that has led a years-long campaign to discredit climate science.

The complaint by the Southern Environmental Law Center and the Environmental Defense Fund (EDF) suggests that contact between the EPA and Heartland has been far more extensive than previously known. An EPA Freedom of Information Act official told EDF last year that an agency search had yielded "between 200 to 600 records" of such correspondence, according to the lawsuit filed in federal court in Virginia.

Read more here.

FOIA News: Envrio advocacy group files FOIA lawsuit against DOI

Nonprofit sues Trump Administration for Access to National Monument Review Documents

Staff, edhat Santa Barbara, Mar. 15, 2018

Today, Los Padres ForestWatch filed suit against the Department of the Interior after the nonprofit organization tried and failed to gain access to public documents related to the federal agency’s review of the Carrizo Plain National Monument last summer.

In April of last year, the Trump Administration announced a review of 27 national monuments throughout the country to determine whether to reduce their size or eliminate their protected status. The list included the Carrizo Plain National Monument in San Luis Obispo and Kern counties, a protected area of native grassland and mountains more than 200,000 acres in size. The national monument is home to 13 federally endangered species such as the San Joaquin kit fox and the California jewelflower, and is known for its spectacular wildflower displays.

[. . .]

In August, ForestWatch filed a Freedom of Information Act (FOIA) Request with the Department of the Interior in an attempt to obtain documents related to the review of the Carrizo Plain National Monument — why it was selected to be reviewed, agency communications on the future of the national monument, and public comments referencing the Carrizo Plain.

Read more here.

FOIA News: Tom Steyer leads FOIA campaign against Trump and Kushner

JARED KUSHNER AND DONALD TRUMP TO GET 200 FREEDOM OF INFORMATION ACT REQUESTS FROM IMPEACHMENT CAMPAIGN

By Jessica Kwong, Newsweek, Mar. 15, 2018

A campaign aimed at getting President Donald Trump impeached plans to file more than 200 public records requests on him and his son-in-law Jared Kushner’s business dealings in an attempt to shed light on conflicts of interest.

The requests demanding records of Trump and Kushner’s business interactions with government agencies and administration members’ expenditures will be filed on Freedom of Information Act (FOIA) Day on March 16, the “Need to Impeach” campaign announced on Thursday.

Campaign founder and major Democratic donor Tom Steyer hired a team of two lawyers and three researchers to file the requests on the birthday of former President James Madison, a Founding Father and advocate for government transparency.

Read more here.

Court opinion issued Mar. 13, 2018

Roseberry-Andrews v. DHS (D.D.C.) -- ruling that: (1) agency failed to demonstrate that it performed adequate search for records concerning plaintiff's employment with ICE; (2) plaintiff failed to establish that agency had policy or practice of delaying FOIA responses; (3) agency properly withheld records pursuant to Exemption 5, 6, 7(C), and 7(E); and (4) agency failed to identify portions of records withheld as non-segregable.  

Summaries of all opinions issued since April 2015 available here. 

FOIA News: More reporting on the Senate FOIA hearing

During Sunshine Week, senators cite issues with FOIA request backlog

By Jory Heckman, Federal News Radio, Mar. 14, 2018 

As the federal government saw a record-breaking number of Freedom of Information Act requests last year, many agencies still struggle with a growing case backlog.

At a Senate Judiciary Committee hearing Tuesday, several lawmakers expressed frustration with some of the bottlenecks in the FOIA process. The hearing occurred during Sunshine Week, an annual initiative by journalism associations to raise awareness of FOIA and its potential obstacles.

Committee Chairman Chuck Grassley (R-Iowa) complained that, in some rare cases, agencies continue to work on FOIA requests from 10 and 15 years ago.

Read more here.