FOIA News: DHS Secretary tells officials to avoid email to deter FOIA requests

John Kelly instructed DHS official to avoid email to deter hackers, FOIA requests: report

John Bowden, The Hill, June 8, 2018

As Secretary of Homeland Security, John Kelly directed at least one official to avoid emailing him about agency business due to fears that his email had been been hacked and was susceptible to Freedom of Information Act (FOIA) requests from journalists and the public, according to an email obtained through a FOIA request.

The email, acquired by BuzzFeed News in response to a FOIA lawsuit, shows correspondence from June 8, 2017, between then-Secretary Kelly and an official whose name was redacted on privacy grounds.

"As we discussed in NYC about the toxic atmosphere here in the D.C. cesspool, my folks are nervous about e-mails you send and ask that you no longer include them on any postings,” Kelly wrote to the official. "FOIA is real and everyday here in the cesspool, and even federal court action on personal accounts is real."

Read more here.

FOIA News: PETA files FOIA lawsuit to obtain USDA records formerly kept online

PETA to sue USDA to obtain records on animal welfare enforcement

Jacqueline Thomsen, The Hill, June 7, 2018

People for the Ethical Treatment of Animals (PETA) will sue the Department of Agriculture (USDA) and the Animal Health Inspection Service in an effort to obtain records on the enforcement of the Animal Welfare Act.

PETA told CNN that the group plans to file the lawsuit Thursday, after the Trump administration failed to respond to Freedom of Information Act (FOIA) requests filed over the past two years.

The USDA last year pulled thousands of records on the Animal Welfare Act from its website, including those on the enforcement of the act.

The agency said it decided to remove the records after lawsuits accusing the USDA of falsely identifying people as having violated federal laws that prohibit the soring of horses for show. Thousands of the records have been reposted.

Read more here.

Court opinion issued June 8, 2018

Laverpool v. HUD (D.D.C.) -- determining that agency performed reasonable search for records concerning the foreclosure of plaintiff's home in Georgia, and that agency sufficiently explained why certain documents were not located.   

Summaries of all published opinions issued since April 2015 available here. 

Court opinions issued June 7, 2018

Rosiere v. United States (3rd Cir.) (not precedential) -- affirming district court's decision to dismiss case as malicious, noting that inmate-plaintiff had filed identical lawsuits in other jurisdictions and inundated the government with motions.

Talbot v. U.S. Dep't of State (D.D.C.) -- finding that: (1) State Department should have used false birthdates in search for passport and travel records of two deceased CIA agents who plaintiff suspects were aware of CIA’s involvement in JFK's assassination; (2) State Department properly relied on Exemption 6 to withhold (a) names and signatures of State Department employees who processed one of CIA agent's passports, and (b) names, birth dates, and places of birth of CIA agent's then-minor children; (3) CIA improperly declined to search certain operational files for responsive records; and (4) CIA properly withheld documents pursuant to Exemption 3, in conjunction with the CIA Act and the National Security Act, as well as Exemption 6.     

Summaries of all opinions issued since April 2015 available here. 

FOIA News: USDA proposes changes to FOIA regulations

The United States Department of Agriculture has proposed revisions to its Freedom of Information Act regulations, according to a Federal Register notice scheduled to be published on June 11, 2018.  The revised regulations are modeled after the DOJ's template and will incorporate the changes mandated by the FOIA Improvement Act of 2016 and the OPEN Government Act of 2007. Comments are due on or before August 10, 2018.

FOIA News: Electronic archiving firm releases report on government retention of text messages

Freedom of Information? Not Necessarily for Text Messages: eDiscovery Trends

Doug Austin, JD Supra, June 6, 2018

What percentage of Freedom of Information Act (FOIA) requests actually result in receiving all of the information requested?  75 percent?  50 percent?  You might be surprised.  Apparently, according to a recent survey, one part of the problem could be the lack of capturing text messages within government organizations.

According to the 2018 Public Sector Text & Mobile Communications Survey from Smarsh, 70 percent of federal, state, county and city government organizations surveyed report allowing SMS/text for official business communication.  But, almost half of those (46 percent) are not formally capturing and retaining these messages.  There were 236 total respondents in the survey.

Read more here.

FOIA News: DOJ releases summary of FY2017 reports

SUMMARY OF FISCAL YEAR 2017 ANNUAL FOIA REPORTS PUBLISHED

Office of Information Policy, FOIA Post, June 7, 2018

Today, the Office of Information Policy (OIP) released its government-wide summary of agencies’ Annual Freedom of Information Act (FOIA) Reports. This comprehensive picture into the government’s FOIA activities during the previous fiscal year looks at key statistics in FOIA administration and identifies trends in FOIA processing by comparing data from prior years.

Read more here.

Court opinions issued June 5, 2018

Marck v. HHS (D.D.C.) -- finding that FBI properly withheld third-party records pursuant to Exemptions 3, 6, 7(C), and 7(D), and that in camera review was not warranted.

Poet Design & Constr. v. U.S. Dep't of Energy (D.D.C.) -- ruling that company lacked standing to intervene because its lawyer submitted FOIA request without identifying company as client.

Summaries of all opinions issued since April 2015 available here. 

Court opinion issued June 2, 2018

Am. Oversight v. U.S. Dep't of Veterans Affairs (D.D.C.) -- denying government's motion to sever plaintiff's lawsuit into seventeen separate actions, all of which concern requests for records about Trump Administration nominees.  Among the arguments advanced by defendants (and rejected) were that the court would be deprived of filing fees and that severing the case would promote efficiency. 

Summaries of all opinions issued since April 2015 available here. 

FOIA News: 9th Circuit overturns dismissal based on identity of requester

Appeals Court Rolls Its Eyes At Government's Attempt To Dodge FOIA Litigation By Pretending It Didn't Know Who Was Seeking Documents

Tim Cushing, Tech Dirt, June 4, 2018

Government agencies, for the most part, treat public records requesters as weeds in the garden of governance: a pest that can never be fully eradicated, but rather tolerated with as much annoyance as possible. Whatever can't be made to disappear with hefty fee demands or months of stonewalling will be given as little attention and compliance as possible. This attitude has turned FOIA requesters into frequent litigators seeking to hold one branch of the government accountable by using another.

When Cheryl Brantley, a member of activist group A Better Way for BPA, requested records from the Bonneville Power Administration (run by the Department of Energy), she filled out the agency's online FOIA form and waited. And waited. And waited some more before finally suing.

BPA responded by declaring A Better Way had no standing to file a lawsuit. It decided to get hypertechnical about Brantley's FOIA submission, claiming no one but Brantley herself should be allowed to sue.

Read more here.