FOIA Focus: Update to Q&A with Ian Smith

Nearly two years ago, this website published an interview with Ian Smith, whose job responsibilities then included submitting Freedom of Information Act requests for the Immigration Reform Law Institute.  Earlier this week, The Atlantic reported that Mr. Smith had recently resigned as a program analyst at the U.S. Department of Homeland Security following the revelation of emails connecting him to white-nationalist activists.  To our further surprise, The Atlantic referenced several portions of our interview of Mr. Smith.  Although The Atlantic did not believe it was necessary to contact us for comment, we wish to inform our readers that we have never been aware of Mr. Smith's activities, nor do we endorse the views of white nationalists. 

Court opinion issued August 31, 2018

Ernest Asiedu Odei & Spirit of Grace Outreach. v. DHS (N.D. Ill.) -- determining that: (1) DHS performed reasonable search for records concerning denial of entry and detention of Ghanaian national, and (2) DHS "honored" disputed FOIA requests by releasing all documents with redactions and that plaintiffs did not object to Vaughn Index.   

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

FOIA News: New and improperly trained employee released Spanberger's file

Hill staffers: Spanberger’s records released because employee misunderstood request

By Laura Vozzella & Jenna Portnoy, Wash. Post, Aug. 31, 2018 

The U.S. Postal Service’s extraordinary release of sensitive personal information about an ex-CIA officer running for Congress resulted from an employee mishandling a public-information request, according to two congressional aides briefed on the matter.

Abigail Spanberger, a Democrat trying to unseat Rep. Dave Brat (R-Va.), touts her experience as a former intelligence officer and postal inspector. So on July 9, GOP opposition researchers with the organization America Rising filed a public records request with the federal government, seeking basic employment information.

The Postal Service told congressional aides in a briefing Thursday that an employee in a new position, who had not been properly trained, mistakenly treated the request as if Spanberger were asking for her own records.

Read more here.

Court opinion issued Aug. 29, 2018

San Juan Citizens All. v. Bureau of Land Mgmt. (D. Colo.) -- in a wieldy opinion, (1) denying parties' summary judgment motions regarding adequacy of government's search for records concerning Glade Run Recreation Area, noting that "each party has the burden of proof showing reasonableness and neither party has met that burden"; (2) finding that "there may be merit in proceeding" with plaintiff's claim that agency has pattern and practice of illegally withholding records from plaintiff; and (3) denying plaintiff's motion for contempt orders against agency officials for submitting declarations that plaintiff asserted were "ambiguous and unresponsive."

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

FOIA News: Stanford Law Review - "FOIA's Lessons for a Chevron-less World"

Deference Conservation - FOIA's Lessons for a Chevron-less World

John C. Brinkerhoff Jr. & Daniel B. Listwa, 71 Stan. L. Rev. 146 (2018)

In SAS Institute, Inc. v. Iancu, the Supreme Court entered the next chapter in the long-winding debate over Chevron deference, which instructs courts to defer to an agency’s reasonable interpretation of its substantive statutes.  Writing for a five-member majority, Justice Gorsuch refused to affirm the doctrine, noting portentously that “whether Chevron should remain is a question we may leave for another day.”  While defending the doctrine, Justice Breyer’s dissent declined a full-throated endorsement, instead classifying it as a simple “rule of thumb, guiding courts in an effort to respect that leeway which Congress intended the agencies to have.”  By teeing up a debate on the future of Chevron, Iancu calls attention to a fundamental question: What would it mean to do away with agency deference?  Both Congress and the courts have debated deference as though it were amenable to easy intervention.  Prior to Iancu, Justice Thomas and then-Judge Gorsuch both questioned Chevron’s constitutionality.  After Iancu, Justice Kennedy called for the Court to “reconsider . . . the premises that underlie Chevron,” accusing the doctrine of producing “reflexive deference.”

[. . .]

This Essay offers a modest contribution to this debate.  Rather than speculating from current usages of Chevron, it takes the novel approach of looking to another area of administrative law where courts already apply de novo review: Freedom of Information Act (FOIA) litigation.  FOIA litigation reveals that those who argue that abrogating Chevron would have limited practical effect are right—but not for the reasons they think.  In the FOIA context, rather than deferring to agencies on matters of statutory interpretation, courts have shifted deferential treatment to other aspects of litigation.  The result is that the government wins 90% of the time, but the de novo standard is formally maintained.

Read more here.

FOIA News: Brookings scholars file FOIA request for Spanberger-USPS processing notes

A Meta-FOIA Request: How Did the Postal Service Release a Congressional Candidate's SF-86?

Scott R. Anderson & Benjamin Wittes, Lawfare, Aug. 30, 2018

This past Tuesday, congressional candidate and former CIA officer Abigail Spanberger announced that her political opponents appeared to have acquired a copy of her SF-86, a form used by the federal government to collect sensitive personal information from job applicants for background checks and security clearances. Press reports later traced the document’s release to the U.S. Postal Service, who was responding to a Freedom of Information Act (FOIA) request. Earlier today, the Postal Service accepted responsibility, apologized to Spanberger, and requested the return of the documents—but stopped short of providing a full explanation.

[. . .]

While an SF-86 is not the sort of material that an agency should be releasing under FOIA, any documents reflecting how that FOIA request was handled—and why—certainly are. So we thought a meta-FOIA request might help shed light on how this release came about. We submitted requests to both the Postal Service and to the National Archives and Records Administration. 

Read more here.

FOIA News: A FOIA tale

How a Maritime Lawyer and Raw Sugar Charted a Course for FOIA

Raw sugar, coconuts and rubber are the little-known originators of the Freedom of Information Act, the federal law that governs the release of public records.

By Terry Mutchler, Law.com,  Aug. 30, 2018

Secrets of Transparency

Starting this column with the words maritime lawyer and raw sugar might mistakenly lead the reader to believe I’m writing about a lawyer and a friend of Stormy Daniels.

However, raw sugar, coconuts and rubber are the little-known originators of the Freedom of Information Act, the federal law that governs the release of public records.

Read more here.

FOIA News: As expected, USPS concedes fault for releasing candidate's SF-86

Postal Service Accepts Blame for Release of Candidate’s Security File, and Asks for It Back

By Michael Tackett, NY Times, Aug. 30, 2018

WASHINGTON — The Postal Service on Thursday said it “deeply regrets our mistake in inappropriately releasing” the official personnel file of Abigail Spanberger, a former C.I.A. operative now running as Democratic candidate for Congress, and requested that a Republican-aligned super PAC return the file.

“We take full responsibility for this unfortunate error, and we have taken immediate steps to ensure this will not happen again,” David Partenheimer, a Postal Service spokesman, said in a statement. He added, “The privacy and security of personal information is of utmost importance to the Postal Service. The Postal Service offers our sincere apology to Ms. Spanberger, and we will request the return of the information which we mistakenly disclosed.”

Read more here. 

FOIA News: Update on USPS's release of national security questionnaire

Ryan-Linked PAC Followed Rules in Obtaining Sensitive Documents About Virginia Democrat

U.S. Postal Service handed over Abigail Spanberger’s personal info in response to FOIA request, CLF says

By Griffin Connolly, Roll Call, Aug. 29, 2018

The super PAC affiliated with Speaker Paul D. Ryan pushed back Wednesday against Virginia Democratic congressional candidate Abigail Spanberger’s accusation that the group obtained an unredacted copy of her federal security clearance application through illegal channels.

Instead, documents reviewed by Roll Call show the conservative opposition research group America Rising — which works with the Congressional Leadership Fund, the super PAC in question — received Spanberger’s government files through a Freedom of Information Act request.

Read more here.

FOIA News: USPS discloses unredacted copy of former CIA agent's security clearance application to FOIA requester

In Unprecedented Move, The US Postal Service Released A Former CIA Officer's Security Application to Republican Group

Grace Wyler & Jason Leopold, BuzzFeed, Aug. 29, 2018

The United States Postal Service has released the entire federal security clearance application of a former CIA officer running for Congress, in what experts say is a highly unusual, and perhaps unprecedented, move, given the extensive, highly personal nature of the information contained in such documents.

In an interview with the New York Times published Tuesday, the former officer, Abigail Spanberger, accused the Congressional Leadership Fund, a super PAC aligned with House Speaker Paul Ryan, of improperly obtaining the document, and suggested that the Trump administration may have leaked the information for partisan purposes.

But BuzzFeed News can confirm that an unredacted copy of the federal security clearance application was obtained through a Freedom of Information Act request filed by America Rising, a research group allied with the Republican Party, which then shared it with the Congressional Leadership PAC Spanberger, a Democrat, is challenging Republican Rep. David Brat in a Virginia congressional race that has become surprisingly competitive going into the fall midterm campaign.

Read more here.