Court opinions issued Aug. 9, 2018

Competitive Enter. Inst. v. Dep't of Treasury (D.D.C.) -- ruling that agency properly invoked Exemption 1 to withhold letter exchanged between Bank of England and Treasury Secretary Jack Lew.

Milbrand v. U.S. Dep't of Labor (E.D. Mich.) -- finding that agency performed adequate search for business email addresses of state compliance officers, and the agency properly withheld business email address of federal compliance officers pursuant to Exemption 6. 

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

FOIA News: POTUS may "get involved" in FOIA for McCabe texts

Trump threatens to 'get involved' in watchdog group's efforts to obtain McCabe text messages

By Avery Anapol, The Hill,  Aug. 11, 2018

President Trump on Saturday criticized the FBI for not turning over former FBI deputy director Andrew McCabe’s text messages to right-leaning watchdog group Judicial Watch.

The group is pursuing the texts through Freedom of Information Act requests to the Justice Department,  seeking communications and text messages from a number of current and former FBI officials.

The president threatened in a misspelled tweet to “get involved” in the effort, and warned the FBI not to “destroy” the items.

Read more here.

Q&A: Virginia is for lovers?

Q.  I submitted a FOIA request as a citizen of Virginia. Soon after, three people of the local government including the Board of Supervisor chairman contacted my employer to file a complaint. I received the information requested, but is it a violation of FOIA to harass and intimidate an individual by contacting their employer?

A.  The Virginia Freedom of Information Act does not address the unfortunate behavior you have described. Other state laws or local policies might apply, but you should confer with an attorney licensed in the Commonwealth for legal advice.   

P.S. The Virginia FOIA does not prevent you from submitting a follow-up FOIA request that seeks copies of the offenders emails about you (or any other topic of interest),  as well as their personnel files, work calendars, travel expenses, etc.

FOIA News: Commerce Department finalizes new FOIA regulations

The Department of Commerce published a final rule implementing new FOIA regulations in today's issue of the Federal Register.  The changes are intended to update agency FOIA processes, particularly in light of the FOIA Improvement Act of 2016.  Twenty-four public comments were received in response to the agency's February 6, 2018 proposed rule, of which twenty-three were deemed "not relevant."  The remaining comment's recommendations were accepted in full.  The new regulations are effective immediately.

FOIA News: Meet OGIS's New Deputy Director - Martha Murphy

OGIS Welcomes New Deputy Director

Nat'l Archives & Records Admin., FOIA Ombudsman, Aug. 8, 2018

We are very happy to announce that Martha Murphy has joined our staff as the office’s Deputy Director. Ms. Murphy will play a critical role in our ongoing work to resolve FOIA disputes, assess and improve agency compliance with the statute, and educate the public about FOIA.

Ms. Murphy has a broad range of experiences in FOIA – ranging from processing records for release, managing a successful FOIA program, and setting nationwide FOIA policy for agency records that are a part of the National Archives’ collection because of their permanent historical value. Most recently. Ms. Murphy was the FOIA Program Manager in Research Services at the National Archives. In this role, she led several high-profile efforts to provide public access to records, including the JFK Assassination Records Collection. Ms. Murphy also oversaw a staff that handles regular requests for a wide variety of records in the National Archives’ holdings.

Read more here.

FOIA News: Judicial Watch gets preservation order in DOJ FOIA lawsuit

Judge orders DOJ to preserve emails from Comey's personal account

John Bowden, The Hill, Aug. 7, 2018

A judge has ordered the Department of Justice (DOJ) to preserve any emails located on former FBI Director James Comey's personal email account after a government watchdog revealed he used the account to conduct government business.

The order issued Monday in federal court in Washington, D.C., comes in response to a request from the right-leaning group Judicial Watch asking for the records to be preserved for use in possible Freedom of Information Act (FOIA) requests.

"In order to avoid any possible issues later in this litigation, the Court will grant Plaintiffs’ Motion. Defendant is ordered to take all necessary and reasonable steps to ensure that any records that are potentially responsive to either of the Plaintiffs’ FOIA requests located on former Director Comey’s personal e-mail account are preserved," U.S. District Court Judge Colleen Kollar-Kotelly wrote.

The judge said the DOJ had failed to explain why it was an "undue burden" to preserve records from Comey's personal account. Judicial Watch has requested that records of meetings between Comey and top Democrats, including former President Obama, be preserved.

Read more here.

FOIA News: Dems file FOIA requests re: Kavanaugh

Senate Dems make 'unprecedented' FOIA request for Kavanaugh documents

By Jordain Carney, The Hill, Aug. 8, 2018

Senate Democrats filed Freedom of Information Act (FOIA) requests on Wednesday to try to force the Trump administration to hand over documents from Supreme Court nominee Brett Kavanaugh's time working in the White House.

"Every Democratic member of the Senate Judiciary Committee is joining in a series of Freedom of Information Act requests ... requesting records from Brett Kavanaugh's time in the Bush White House," Sen. Richard Blumenthal (D-Conn.) told reporters during a conference call.

Read more here.

Q&A: Defense contractors on the lookout?

Q. Is it possible, under the FOIA, to obtain information about the list of companies that will be audited by the Defense Contract Management Agency ("DCMA")?

A. Records concerning prospective or scheduled audits are likely controlled by multiple agencies within the Department of Defense ("DOD").  DCMA is primarily tasked with contract administration; after a contract is awarded, DCMA ensures contractor performance.  Formal auditing before and after a contract award, however, appears to be undertaken by the Defense Contract Audit Agency ("DCAA").  If you are looking for records concerning companies under audit, or which are slated for audit, then you should consider submitting FOIA requests to both DCMA and DCAA.

That being said, any responsive records are likely to be heavily redacted or withheld in full.  First, these records could be protected by Exemption 5, insofar as they reflect DOD's deliberations about which contractors to audit (or not to audit!).  Second, to extent the records contain specific details about any one contractor, Exemption 4 may be used to withhold privileged or confidential business information.  Finally, depending on what sort of audits we're talking about, Exemption 7 could be in play, too.  Routine administrative or oversight audits arguably do not fall within the scope of a "law enforcement purpose," unless they are later connected to another investigation.  But if there is any nexus between a scheduled audit and an examination of potential illegality, then the agency could have a colorable Exemption 7 argument and it will be that much more difficult to get useful information.

Court opinion issued Aug. 6, 2018

Advocates for the West v. DOJ (D. Idaho) -- concluding that Office of Legal Counsel properly relied on attorney-client, deliberative process, and presidential communications privileges to withhold twelve legal memoranda regarding the President's authority to alter national monuments. 

Summaries of all published opinions issued since April 2015 available here

FOIA News: NY AG sues DOL after 2-month FOIA delay

ICYMI, Underwood Sues US Dept. of Labor Over Lack of Response to FOIA Request

New York Attorney General Barbara Underwood filed suit on Monday against the U.S. Department of Labor for not responding to a Freedom of Information Act request submitted by her office in April.

By Dan M. Clark, NY Law J., Aug. 06, 2018

New York Attorney General Barbara Underwood filed suit on Monday against the U.S. Department of Labor for not responding to a Freedom of Information Act request submitted by her office in April.

The lawsuit alleges that the federal agency has not responded to Underwood’s request for information on a new federal pilot program created to simplify payment of back wages owed by employers in accordance with the Fair Labor Standards Act without going through litigation.

Read more here.