FOIA News: More complaining about FOIA processing

If You Want The Government To Hand Over Documents, You Might Want To Retain A Lawyer

from the get-busy-suing-or-get-busy-waiting dept

By Tim Cushing, Techdirt, Nov. 16, 2018

Fifty years after the passage of the Freedom of Information Act, the letter of the law lives on but its spirit has been crushed. While it's definitely preferable to having no opportunity to demand government agencies hand over requested documents, it's not the significant improvement it was promised to be.

As was noted here four years ago, the government has pretty much adopted a presumption of opacity that necessitates the filing of lawsuits. This contradicts the law's intentions, as well as proclamations made by President Obama, who declared his administration the "most transparent." This assertion fell flat when government agencies engaged in FOIA business as usual and Obama did nothing to hold them accountable.

Read more here.

FOIA News: FOIA Advisory Committee to meet on Nov. 29

Next FOIA Advisory Committee Meeting: November 29, 2018

Nat’l Archives & Records Admin., FOIA Ombudsman, Nov. 14, 2018

The intersection of the Freedom of Information Act (FOIA) and records management will be the focus of the next FOIA Advisory Committee meeting on November 29, 2018, in the William G. McGowan Theater at the National Archives in Washington, DC.

The meeting, from 10:00 a.m. to 1:00 p.m., is the second of the 2018-2020 term of the FOIA Advisory Committee, whose members are appointed by the Archivist of the United States and are tasked with studying FOIA across the government, soliciting public comments, and recommending improvements to the Archivist. This is the third two-year term of the Committee, established by the National Archives and Records Administration in 2013 under the Open Government National Action Plan 2.0. The Committee’s members, all experts in FOIA, come from both inside and outside the government. OGIS’s Director chairs the Committee and NARA staff administratively support its work.

Read more here.

Court opinions issued Nov. 13, 2018

Anguiano v. U.S. Immigration & Customs Enforcement (N.D. Cal.) -- ruling that : (1) ICE failed to show that its search was adequate in all respects; (2) court could not evaluate ICE's use of Exemptions 5 and 7(E) without reviewing certain documents in camera; and (3) ICE properly relied on Exemptions 6 and 7(C) to protect information regarding third parties and ICE employees.

Chase v. DOJ (D.D.C.) -- finding that plaintiff had offered no new arguments that warranted changing court’s earlier opinion that government had performed adequate search for records concerning plaintiff’ criminal conviction and that it properly withheld names of third parties pursuant to Exemption 7(C).

Pubien v. Exec. Office for U.S. Attorneys (D.D.C.) -- concluding that EOUSA performed adequate search for grand jury information regarding plaintiff’s criminal case, and that it properly withheld the names of government employees pursuant to Exemption 6.

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

FOIA News: SCOTUS denies cert in FOIA case

Supreme Court Won’t Review Ex-IRS Employee’s FOIA Suit

Yvonne Juris, Law360, Nov. 13, 2018

The U.S. Supreme Court on Tuesday declined to hear a suit by a former Internal Revenue Service employee challenging the IRS watchdog agency’s rejection of his Freedom of Information Act request concerning a congressional investigation that he triggered.

As usual, the high court did not explain its denial. In his September petition to the court, Peter Janangelo asked the justices to review court rulings that allowed the Treasury Inspector General for Tax Administration to reject his November 2015 FOIA request.

Janangelo was seeking records from TIGTA on an investigation into alleged misconduct by an IRS manager that had been triggered by a congressional inquiry by Rep. Joe Heck, R-Nev. Janangelo had informed Heck about the alleged misconduct, according to court documents.

“There is a public interest in this information, aside from Mr. Janangelo’s personal interest in defending himself, and that is that these documents will expose violations of federal law including nepotism, retaliation for whistle-blowing, and discrimination in favor of certain employees with personal or sexual relationships with their superiors at the IRS, which is a scandal worthy of public exposure,” Janangelo said in his petition.

TIGTA invoked the Glomar response — named for a Central Intelligence Agency denial of a FOIA request for records of a secret government salvage ship called the Hughes Glomar Explorer — to dismiss his claims, saying it could neither confirm nor deny the records existed, according to court documents.

Read more here (subscription required).

FOIA News: "The Sorry State of FOIA"

The Sorry State of FOIA

C.J. Ciaramella, Reason, Nov. 13, 2018 (Dec. 2018 Print Edition)

When the Freedom of Information Act (FOIA) was passed in 1966—about five years before public trust in government started to crater as a result of the Pentagon Papers and then Watergate—it was a landmark law and an exciting, promising new tool for reporters, researchers, and concerned citizens. More than 50 years later, it is a wheezing, arthritic artifact of more optimistic times.

More people than ever want to know what the government is doing in their name and with their money. The number of submitted FOIA requests has steadily increased year-over-year, a trend that has only accelerated under the daily controversies of the Trump administration, which said it received roughly 800,000 such requests in 2017, a record. At the same time, despite recent legislation to strengthen the law, it's more difficult than ever to pry loose documents about the federal government. The Associated Press reported in March that the number of FOIA requests denied or censored by the feds also hit a record high in the first year of the Trump administration: "The times the government said it would be illegal under other U.S. laws to release requested information nearly doubled to 63,749."

Read more here.

FOIA News: The FOIA Project releases annual report on FOIA lawsuits in FY 2018

Annual Report: FOIA Lawsuits Reach Record Highs in FY 2018

Chistine Mehta, The FOIA Project, Nov. 12, 2018

Freedom of Information Act (FOIA) lawsuits continued to break record highs in FY 2018. According to case-by-case court records, 860 FOIA lawsuits were filed in FY 2018 against government agencies. In addition, the backlog of FOIA suits waiting to be decided rose to 1,204 cases, an all-time high.

Compared to an average of 402 FOIA suits per year during the Obama Administration, the rate of filing since President Trump assumed office has more than doubled. While suits rose during the latter years of the Obama Administration, the 860 suits filed in FY 2018, represent a 67 percent increase over filings during the last full fiscal year of the Obama Administration.

Although not the only factor, a notable pattern emerging during FY 2017 and 2018 is the rising number of nonprofit filers. In FY 2018, nonprofits comprised 56 percent of all FOIA lawsuits brought against the government. Nonprofits became increasingly active under the Obama Administration, but emerged as the majority of all FOIA lawsuit plaintiffs after President Trump took office. In FY 2016, nonprofit filers comprised just 36 percent of plaintiffs, whereas they comprised 50 percent or more in FY 2017 and FY 2018 (see previous report, “FOIA Suits Filed by Nonprofit/Advocacy Groups Have Doubled Under Trump”). Suits filed by reporters and news organizations also have been increasing.

Read more here.

FOIA News: New technologies can improve agency search adequacy

Machine Learning Technology Can Help Agencies Handle New FOIA Request Standard

Jon Kerry-Tyerman, Law.com, Nov. 8, 2018

In October 2018, U.S. District Judge Christopher Cooper ruled that “FOIA requests are not a game of Battleship. The requester should not have to score a direct hit on the records sought based on the precise phrasing of his request.” In an opinion which cites Summers v. Department of Justice and Bagwell v. Department of Justice, Cooper ordered the Department of Homeland Security to conduct an additional search of agency records in response to the Government Accountability Project’s FOIA request. The judge ordered a new meet-and-confer within two weeks of the ruling to “engage in a good faith effort to arrive at a reasonably limited set of additional search terms that rectify the under-inclusivity of the ‘ideological tests’ and ‘cellphone’ search terms without being too over-inclusive.”

Read more here (free subscription required).

FOIA News: OGIS's Martha Murphy Discusses FOIA at CUNY Conference

OGIS Deputy Director Martha Murphy Shares FOIA Federal Agency Perspective at CUNY Environmental Law Conference

Nat’l Archives & Records Admin., FOIA Ombudsman, Nov. 7, 2018

Last Saturday I represented OGIS and the National Archives and Records Administration at a conference on environmental Freedom of Information Act (FOIA) issues at the City University of New York (CUNY) School of Law in Queens, New York. The conference, co-sponsored by the CUNY School of Law, CUNY Craig Newmark Graduate School of Journalism and CUNY’s Law Center for Urban Environmental Reform, brought together lawyers, journalists, public advocates, students and a couple FOIA agency representatives to discuss using FOIA for environmental advocacy, litigation, and journalism. Throughout the day, seasoned FOIA requesters offered advice based on their experiences with the FOIA process.

Read more here.

Court opinion issued Nov. 7, 2018

Liounis v. DOJ (D.D.C.) -- concluding that Executive Office for United States Attorneys performed reasonable search for grand jury records pertaining to plaintiff’s criminal case and properly withheld records pursuant to Exemption 3, in conjunction with Federal Rule of Criminal Procedure 6(e), and Exemption 5 (attorney-work product).

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

FOIA News: Nat' l Endowment for Arts reopens proposed FOIA regs

The National Endowment for the Arts and the Humanities has reissued a proposed rule for amending its FOIA regulations, which initially was proposed on June 9, 2017. NEA further amended its proposed amendments in response to public comments. A new comment period will be open through December 6, 2018.