Fleming v. Medicare Freedom of Info. Grp. (D.D.C.) -- denying pro se inmate's motion for permission to file motion to proceed in forma pauperis, motion for appointment of counsel, motion for discovery, and motion for expedited proceedings, because court previously considered and rejected duplicate motions.
Summaries of all published opinions issued since April 2015 available here.
The most recent issue of New York University Law School's Journal of Legislation and Public Policy includes an interesting student-authored article entitled FOIA in the Executive Office of the President. The article describes "the history of how courts have determined the FOIA status of each entity in the EOP," and suggests "that the test the courts have relied on does not accurately account for the complex nature of the EOP."
By Tajha Chappellet-Lanier, Fedscoop, July 24, 2018
File a Freedom of Information Act request with the U.S. Citizenship and Immigration Services, and you can now expect a response to that request online.
This is the latest expansion of the agency’s new Freedom of Information Act Immigration Records SysTem (FIRST) — a system that will “eventually” allow requesters to navigate the entire FOIA process digitally. FIRST is being rolled out in “phases,” though, so currently any initial FOIA requests still need to be made via fax, mail or e-mail.
Read more here.
Kansas ex rel Schmidt v. DOD (D. Kan.) -- following in camera review of five documents pertaining to proposed closing of Guantanamo Bay detention center, concluding that: (1) agency improperly relied on deliberative process privilege to withhold information about actual costs of housing various prisoners; (2) agency properly invoked deliberative process privilege to withhold projected costs of moving Guantanamo Bay prisoners; and (3) agency properly withheld draft email pursuant to deliberative process privilege, but improperly relied on same privilege to withhold identity of another agency.
Villar v. FBI (D.N.H.) -- ruling that FBI properly invoked Exemptions 6, 7(C), 7(D), and 7(E) to withhold records, or portions thereof, concerning agency's investigation of plaintiff-inmate's criminal activity.
Mora-Villalpando v. ICE (W.D. Wa.) -- denying government's motion to strike Complaint's allegations that ICE illegally targeted plaintiff and other immigration activists, because allegations would be relevant to "public interest" factors considered under Exemptions 6 and 7(C) and for attorney's fees.
Summaries of all published opinions issued since April 2015 available here.
A federal court ruled last Friday that the Department of State was not required to enlist the assistance of the Attorney General to recover work-related emails exchanged by former Secretary of State Colin Powell on an AOL email account, because those emails were "technologically impossible" to recover. Plaintiff Cause of Action had sought Powell's AOL emails through two Freedom of Information Act requests in October 2016, after then-Under Secretary of State Patrick Kennedy testified about the agency's efforts to find the emails. But when Cause of Action's FOIA requests stalled, Cause of Action filed a suit seeking enforcement of a Federal Records Act provision requiring agencies to ask the Attorney General for help in securing lost federal records.
By Ryan J. Foley, Wash. Times, July 22, 2018
One app promotes itself as a way to discuss sensitive negotiations and human resources problems without leaving a digital record.
Another boasts that disappearing messages “keep your message history tidy.” And a popular email service recently launched a “confidential mode” allowing the content of messages to disappear after a set time.
The proliferation of digital tools that make text and email messages vanish may be welcome to Americans seeking to guard their privacy. But open government advocates fear they are being misused by public officials to conduct business in secret and evade transparency laws.
Read more here.
By Jake Lucas, NY Times, July 21, 2018
Scott Pruitt’s resignation as head of the Environmental Protection Agency this month was preceded by a steady drumbeat of revelatory stories — from The Times and others — about his misuse of government resources. Some of the most remarkable of those stories were underpinned by information obtained through the Freedom of Information Act, or FOIA.
The law, first enacted in 1966, and significantly strengthened after Watergate in 1974, gives the public the right to access records from any federal agency, with a handful of exceptions, and states have similar open-records laws that grant the same general right at the local level.
Read more here.
DOJ: Advice To Agencies Not Automatically Subject To FOIA
Bryan Koenig, Law360, July 20, 2018
Oral arguments over a lawsuit attacking a claim by the U.S. Department of Justice’s Office of Legal Counsel that its legal advice is broadly exempt from the Freedom of Information Act boiled down Friday to a chicken-and-egg argument, with the DOJ asserting that agencies must adopt the advice before it becomes subject to disclosure.
The Campaign for Accountability contends, however, that formal written opinions from the OLC — a DOJ office that acts as legal adviser to the executive branch — are immediately binding on agencies and thus count as “working law” subject to disclosure under FOIA. It’ll be up to a D.C. federal judge to decide which comes first, the binding opinion or adoption by the agency, with the DOJ arguing of the latter Friday in an attempt to nix the CfA’s amended complaint after its first was tossed last year.
“There will always be an intermediate step. ... to give operative legal effect” to OLC opinions, DOJ attorney Daniel Schwei said. Those opinions, he argued, “have no effect until a policy-making agency actually does something.”
The OLC has already posted about 1,300 of its opinions online, but it’s not enough for the CfA, which filed suit in June 2016 only for U.S. District Judge Ketanji Brown Jackson to dismiss the initial complaint last year.
Read more here (subscription required).
The FOIA requires the Office of Government Information Services to offer mediation services to resolve disputes between requesters and agencies, and it authorizes OGIS to issue advisory opinions "at the discretion of the Office or upon request of any party to a dispute." On Wednesday, July 17, 2018, after teasing Twitter followers about a "big announcement," OGIS issued an "advisory opinion" -- the first in its history -- concerning agency communications with requesters. The staff of FOIA Advisor -- Allan Blutstein (AB), Kevin Schmidt (KS), and Ryan Mulvey (RM) -- share their views about OGIS's historic action.
AB: It reminded me of Geraldo Rivera's "The Mystery of the Al Capone's Vaults," an overhyped 1986 television special that infamously failed to deliver on its tantalizing promises. The content of OGIS's guidance is useful, to be sure, but it is not the "advisory opinion" that Congress or the requester community envisioned -- that is, an opinion about a specific dispute between parties. So why the embellishment? OGIS has consistently claimed that issuing such opinions would undermine its role as a neutral mediator. Fair enough. DOJ should be the government's final decision-maker on the interpretation of the law in any event.
RM: Yes, the substance of OGIS's "advisory opinion" is helpful but less than groundbreaking. I'm not sure I agree, however, that Congress intended these sorts of opinions to address only particular disputes. Section 552(h)(3) is ambiguous. In my mind, the whole concept of an advisory opinion suggests it is meant to be more general and provide an interpretation of the law that transcends any specific case. Here, OGIS's opinion was issued at its own discretion and based on its experience mediating a number of disputes. I don't think that's objectionable. And as far as I can tell, the legislative history is silent about what Congress actually envisioned OGIS's role to be with advisory opinions, although DOJ unsurprisingly raised "concerns" that OGIS would be given "any sort of policymaking and adjudicative role with respect to FOIA compliance." I'd just add that it's unclear what OGIS even thinks its authority should be; the agency issued a proposed rule at the end of 2016 to introduce regulations implementing its statutory mission, but the rule was never finalized and inexplicably failed to address advisory opinions.
KS: The tinfoil hat side of me believes this advisory opinion may have been a trial run. As Ryan noted, DOJ is not happy that OGIS is able to issue any sort of opinion on FOIA compliance. So OGIS wanted to test the water and put out a rather unobjectionable first advisory opinion and see what sort of feedback they get. DOJ puts out guidance related to improving agency communication with requesters on a regular basis, so this isn't breaking any new ground. At least publicly, I'd say mission accomplished, but who knows what sort of feedback they've gotten behind the scenes. We won't be able to glean much information about OGIS' intent until they put out another advisory opinion.
Sikes v. U.S. Dep't of the Navy (11th Cir.) -- holding that: (1) district court erred in allowing Navy to ignore plaintiff's request for certain records concerning suicide of Admiral Boorda merely because agency had released records in response to plaintiff's duplicate request five years earlier; (2) although district court failed to address whether Navy properly withheld suicide note from Admiral Boorda to his wife pursuant to Exemption 7(C), there was no need to remand case because law was clear that note was properly protected from disclosure.
Summaries of all published opinions issued since April 2015 available here.