FOIA News: Immigration agencies put FOIA requests on ice

The Agencies Key To Trump’s Immigration Agenda Keep A Lot Of Secrets

Getting responses through the Freedom Of Information Act can be a serious challenge.

By Dana Liebelson, HuffPost, Apr. 3, 2018

WASHINGTON ― President Donald Trump has made his promise of aggressive immigration enforcement the centerpiece of his domestic agenda. But two agencies tasked with enforcing the nation’s immigration laws — U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) — have long attracted criticism for failing to release documents and data in a timely manner, if at all. That makes it hard for journalists, advocates, lawyers and the public to keep tabs on what the administration is doing.  

Under the law, the government is supposed to grant or deny Freedom of Information Act requests (which any member of the public can file) within 20 working days, with some exceptions, and provide records unless the information is legally exempt from disclosure.

But if you file a FOIA request with ICE or CBP,  you may find yourself in a bureaucratic morass: Fighting a faceless online portal (with CBP), watching your request ping-pong between agencies or sub-agencies, getting summarily rejected, struggling to talk to a human (ICE switched to an email-only system about two years ago), and waiting months — or more than a year — to get back a document that may be heavily redacted, according to HuffPost interviews with requesters. Some say they must resort to litigation to get any meaningful response.

Read more here.

Court opinion issued Apr. 2, 2018

Competitive Enter. Inst. v. U.S. Dep't of the Treasury (D.D.C.) -- finding that: (1) agency conducted adequate search for years' worth of communications originating with two components that mention "carbon," and (2)  agency's withholdings under deliberative process privilege were justified except records concerning "staff commentary on news articles, public comments by non-agency officials, and other media originating outside the Department."

Summaries of all opinions issued since April 2015 available here. 

Court opinions issued Mar. 31, 2018

Nat'l Sec. Counselors v. DOJ (D.D.C.) -- on remand from D.C. Circuit, ruling that FBI's policy of charging $15.00 for preparing CD with 500 pages did not violate statute's requirement that agency recover “only the direct costs of search, duplication, or review.” 

Borda v. DOJ (D.D.C.) -- determining that: (1) Criminal Division's supplemental search for records concerning plaintiff's criminal investigation and prosecution was adequate; (2) Criminal Division properly withheld plea agreements that are under court seal, as well as other responsive records pursuant to Exemptions 3 (grand jury material) and 5 (attorney work-product privilege).  

Viola v. DOJ (D.D.C.) -- finding that: (1) Executive Office for U.S. Attorneys performed adequate search for third-party records related to plaintiff's mortgage fraud conviction and properly withheld records pursuant to Exemptions 6 and 7(C); (2) FBI conducted adequate search and properly withheld records pursuant to Exemptions 3, 6, 7(A), 7(C), 7(D) and 7(E); and (3) plaintiff was not entitled to appointment of counsel.  

Robert v. CIA (E.D.N.Y.) -- 

Summaries of all opinions issued since April 2015 available here. 

FOIA News: Mueller seeks FOIA rights waiver

Mueller's office defends deal with Dutch lawyer to waive public records rights

By Katelyn Polantz, CNN, Apr. 2, 2018

Special counsel Robert Mueller's office is defending an agreement it made with a Dutch lawyer tied to former Trump deputy campaign chairman Rick Gates to waive his right to request public records.

In a new court filing, prosecutors make clear that Alex van der Zwaan knows key details about Mueller's ongoing investigation.

"Van der Zwaan is in an unusual position of having information related to the office's investigation that is not widely known -- including information that he knows first-hand due to his role in the conduct the Office is investigating," the filing on Monday morning says.

Read more here.

FOIA News: OGIS Director discusses FOIA lawsuits

Alina Semo: How to avoid and deal with FOIA lawsuits

Federal News Radio, Apr. 2, 2018

Every administration says it wants the government to be more transparent. Yet federal agencies still get tens of thousands of Freedom of Information Act, or FOIA, requests every year. An increasing number of frustrated people sue to have their FOIA bids fulfilled. Alina Semo is director of the Office of Government Information Services at the National Archives and Records Administration. She has advice for avoiding and dealing with FOIA lawsuits, which she shared on Federal Drive with Tom Temin.

Court opinions issued Mar. 30, 2018

Jordan v. DOL (D.D.C.) -- deciding that agency improperly withheld email under attorney-client privilege, noting that "simply copying an attorney on a communication does not make that communication privileged.'

Am. Immigration Lawyers Ass'n v. DHS (D.D.C.) -- determining that U.S. Customs and Border Patrol failed to perform reasonable search for certain policy records and instructions disseminated to customs officials at U.S. ports-of-entry.

Reilly v. DOJ (D. Conn.) -- ruling that FBI properly relied on Exemption 3, 6 and 7(C) to withhold wiretap surveillance tapes concerning criminal investigation of Bridgeport Mayor Joe Ganim. In reaching its decision, the court stated that exposing Ganim's misconduct as elected official was not in public interest because it would not shed light on misconduct by federal officials. 

Yanofsky v. U.S. Dep't of Commerce (D.D.C.) -- holding that FOIA's fee scheme was not displaced by the Mutual Educational And Cultural Exchange Act of 1961 and the Appropriations Act of 2016, and thus Commerce improperly billed plaintiff $173,775 in connection with his request about visitors and international flights to United States.

Turner v. U.S. Dep't of the Treasury (E.D. Cal.) -- concluding that Financial Crimes Enforcement Network performed adequate search for copy of Currency Transaction Report concerning plaintiff. 

Summaries of all opinions issued since April 2015 available here.

Court opinions issued Mar. 29, 2018

Judicial Watch v. U.S. Dep't of State (D.D.C.) -- ruling that State Department properly relied on deliberative process privilege to withhold records originally generated by non-agency employees in preparation for Senate confirmation hearings of Secretary of State nominee Hillary Clinton and Legal Adviser Designate Harold Koh; further ruling that agency properly withheld private email addresses pursuant to Exemption 6, which plaintiff did not dispute. 

Knowles v. U.S. Dep't of State (D.D.C.) -- finding that State Department performed reasonable search for records concerning plaintiff's extradition from the Bahamas, and that State Department and/or DOJ's Criminal Division properly withheld records pursuant to Exemptions 1, 5, 6, and 7(C). 

Tokar v. DOJ (D.D.C.) -- concluding that: (1) Criminal Division's creation of chart regarding selection of corporate compliance monitors for fifteen corporations did not satisfy obligation to conduct adequate search for records in absence of agreement with plaintiff; (2) Criminal Division properly invoked Exemption 4 to withhold company's compliance program concerning Foreign Corrupt Practices Act; (3) agency improperly withheld, pursuant to Exemption 6 and 7(C): (a) "names of monitor selection committee members who are not part of DOJ’s senior management;" (b) "names and related personal identifying information concerning the individuals nominated but not selected to be monitors;” and (c) "names of the unselected nominees when those names appeared in a company’s response letter to its submitter notice."

Summaries of all opinions issued since April 2015 available here. 

FOIA News: FOIA Advisory Committee Set to Meet on 4/17/18

The National Archives and Records Administration published a notice for the next meeting of the FOIA Advisory Committee in today's issue of the Federal Register.  The Committee will be meeting on April 17, 2018 from 10:00am to 1:00pm EDT.  All attendees must register by 5:00pm on April 16, 2018.  Agenda and meeting materials are available online.  Consult the notice for additional details.

Court opinion issued Mar. 27, 2018

Nat'l Immigrant Justice Ctr. v. DOJ (N.D. Ill.) -- finding that: (1) agency properly relied on attorney-client and attorney work-product privileges to withhold certain Attorney General communications related to eleven contested immigration decision; (2) agency's use of deliberative process privilege was not justified by brief descriptions provided in Vaughn Index. 

Summaries of all opinions issued since April 2015 available here. 

FOIA News: ICYMI, OGIS releases annual report

OGIS Fiscal Year 2017 Report Now Available

Nat'l Archives & Records Admin., OGIS Blog, Mar. 28, 2018 

We realize that it was a very busy Sunshine Week, so we understand if you missed the fact that in addition to testifying on the Hill and hosting and participating in great events, we also released our Fiscal Year (FY) 2017 Annual Report. This year’s report chronicles our first full year since the passage of the FOIA Improvement Act of 2016, which highlighted OGIS’s crucial role in improving compliance with the statute, and improved our ability to share our frank observations about methods to improve the FOIA process.

Read more here.