Court opinion issued Aug. 27, 2018

Crestek, Inc. & Subsidiaries  v. IRS (D.D.C.) -- determining that IRS performed reasonable search for companies tax records and properly withheld certain records pursuant to Exemptions 5 (deliberative process, attorney work-product, and attorney-client privileges), 7(D), and 7(E).  

Sandoval v. DOJ (D.D.C.) -- ruling that: (1) plaintiff failed to exhaust administrative remedies with respect to requests to FBI and Federal Bureau of Prisons for records about his criminal case; (2) plaintiff was not entitled to additional records from Executive Office for United States Attorneys because he refused to pay for copies.  

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

Court opinions issued Aug. 24, 2018

Gatore v. DHS (D.D.C.) -- concluding that: (1) agency improperly relied upon deliberative process privilege to withhold asylum officer assessments in full; (2) plaintiff had standing to bring "policy-and-practice" claims pertaining to agency's treatment of assessments under FOIA and that defendant was not entitled to summary judgment on merits of claims; and (3) individual plaintiffs failed to demonstrate that they were entitled to represent a class of plaintiffs under Rule 23(a).  

Turner v. U.S. Forest Serv. (S.D. Ill.) -- determining that agency conducted adequate search for records pertaining to protection of bats in Shawnee National Forest.  

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

FOIA News: Technical difficulties compromised DOJ's FOIA searches

Department of Justice Reveals ‘Glitch’ Shielded Officials From Public Scrutiny

A revelation that the Department of Justice failed to search the emails of some officials has it scrambling to redo open records requests.

By Betsy Woodruff, Daily Beast, Aug. 24, 2018

A technical glitch kept the Justice Department from reviewing all the email accounts it was supposed to for almost a year, according to a new, previously unreported court filing.

That means emails from some DOJ officials weren’t examined in response to records requests and lawsuits—so key emails that should have been made public months ago could have been inadvertently withheld. The department is now redoing records searches to try to belatedly fulfill requests.

Read more here.

FOIA News: OMB Proposes New FOIA Regulations

The White House Office of Management and Budget ("OMB") published a notice of proposed rulemaking for revisions to its Freedom of Information Act ("FOIA") regulations in today's issue of the Federal Register.  The proposed rule seeks to update OMB's FOIA program in light of the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016.  OMB also seeks to restructure and "streamline" its FOIA processes, as suggested by the Department of Justice's model FOIA regulations and other Office of Information Policy guidance.

Comments are due on or before September 24, 2018.

FOIA News: OGIS releases assessment of USPS FOIA Program

OGIS Releases Compliance Assessment of U.S. Postal Service FOIA Program

Nat'l Archives & Records Admin., FOIA Ombudsman, Aug. 22, 2018

We are happy to announce the publication of our compliance assessment report of the U.S. Postal Service (USPS). USPS invited us to conduct this assessment as part of their ongoing efforts to strengthen their FOIA program.

OGIS’s agency assessments are based on direct observation and review of USPS’s FOIA case files, analysis of applicable data and documents, and interviews with agency employees and officials. Our agency assessment reports are intended to provide sufficient detail about the FOIA program’s processes to understand its operations and provide actionable recommendations. These recommendations are based on our knowledge of FOIA practices across the government.

Read more here.

FOIA News: MuckRock on the CIA's "secret" FOIA email account

The CIA's secret public email address

Emma Best, MuckRock, Aug. 21, 2018

Somewhat infamously, the Central Intelligence Agency’s FOIA office has for years relied on a single fax machine (along with a vaguely cumbersome portal), prompting jokes and regarding the otherwise cutting-edge CIA insistence on the ‘80s technology instead of email.  The system caused headaches internally as well, with the Agency routinely complaining about the number and size of faxes that they receive.  So why, in 2016, when the CIA finally implemented an email account for FOIA for requesters to use, wasn’t there greater fanfare in FOIA community?  Because the CIA never told requesters about it.

Read more here.

Court opinions issued Aug. 21, 2018

Am. Civil Liberties Union v. DOD (2nd Cir.) -- reversing district court's decision and holding that detainee photographs were protected from disclosure pursuant to Exemption 3 in conjunction with the Protected National Security Documents Act of 2009. 

Protect Democracy Project v. DOD (D.D.C.) -- ruling that: (1) government properly relied on presidential communications privilege to withhold three legal memoranda pertaining to U.S. missile attack in Syria; (2) government properly invoked attorney-client privilege to withhold legal advice of Office of Legal Counsel to Attorney General; (3) government properly relied on deliberative process privilege to withhold talking points used to respond to media inquiries, except for portion that government officially acknowledged.

Bonfilio v. OSHA (D.D.C.) -- finding that agency performed adequate search for records of deaths or injuries occurring on property of four construction companies, and that agency properly withheld information pursuant to Exemptions 6 and 7(C).  

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

FOIA News: Second Circuit backs gov't withholding of Abu Ghraib Photos

US Can Keep Abu Ghraib Photos in the Dark

By Nick Rummel, Courthouse News Serv., Aug. 21, 2018

MANHATTAN (CN) – The Second Circuit backed the U.S. government on Tuesday for its refusal to share what could be hundreds of photographs depicting torture at Abu Ghraib prison.

After 14 years in court, the federal appeals court agreed with the government that if released the photos could be used as a recruitment tool for the Islamic State group and otherwise harm U.S. personnel abroad.

Read more here.

Court opinion issued Aug. 20, 2018

Nat'l Sec. Counselors v. CIA (D.D.C.) -- finding that CIA's supplemental search for records of certain search tools and indices was reasonable and that agency properly withheld records pursuant to Exemption 3 (National Security Act) and Exemption 5 (deliberative process privilege).

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

Q&A: The wheels of justice turn slowly

Q.  According to an acknowledgment email, the DOJ's National Security Division received our FOIA request on the 20th of July. Yet as of this time, there is no response. What are my options?

A.  The DOJ's response to your request was due within 20 business days, which by my calculation is August 17, 2018.  If "unusual circumstances" apply to your request, however, DOJ may notify you that it is taking an additional 10 business days to process your request.  Once the response deadline passes (whenever that may be), you are entitled to file a lawsuit in federal court.

Short of a lawsuit, you might consider asking NSD's FOIA public liaison for an estimated date of completion.  According to DOJ's most recent FOIA annual report, NSD takes an average of about 342 days to process "complex" requests and 31 days to process "simple" requests.  Thus, if the acknowledgment letter does not indicate which processing track your requests falls into, you should ask the NSD liaison.  

Other options include asking NARA's Office of Government Information Services for assistance.  Keep in mind, however, that OGIS cannot compel an agency to speed up a response.  Another means of prodding the agency would be to contact your Congressperson, who will then forward your concerns to the agency with a less-than-passionate request for assistance.