Court opinion issued Nov. 26, 2018

Smart-Tek Serv. Solutions Corp. v. IRS (S.D. Cal.) -- determining that: (1) IRS performed adequate search for plaintiff’s administrative files; (2) IRS properly withheld return information of plaintiff’s corporate alter ego pursuant to Exemption 3, in conjunction with 26 U.S.C. § 6103(a); and (3) IRS properly withheld third-party information pursuant to Exemption 6 and plaintiff’s “risk score” pursuant to Exemption 7(E).

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

FOIA News: What were the worst FOIA responses of the year?

Submit Your Nominations for The Foilies 2019

By Dave Maas, Elect. Frontier Found., Nov. 27, 2018

EFF is now accepting nominations for The Foilies 2019, our fifth annual “anti-awards” program for government agencies that, whether by maliciousness or incompetence, interfere with the right to access public information. It’s a tongue-in-cheek affair celebrating Sunshine Week (March 10-16, 2019), when a coalition of transparency organizations raise public awareness of the open government laws that make democracy possible.

Read more here.

Court opinions issued Nov. 23, 2018

Hajro v. U.S. Citizenship & Immigration Servs. (9th Cir.) (unpublished) -- affirming district’s ruling that plaintiff failed to demonstrate that he personally filed FOIA requests that were delayed and, therefore, he did not have standing to bring “pattern or practice” claim. In rejecting the adequacy of plaintiff’s duplicative declaration, the Court amusingly remarked that “[w]hatever salience the adage ‘if at first you don't succeed—try, try again’ has in daily life, expecting identical arguments to yield different results is a poor strategy for success in our court.”

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

Court opinion issued Nov. 20, 2018

Phillips v. DOJ (E.D. Cal.) -- dismissing pro se prisoner’s amended Complaint without prejudice because plaintiff failed to show that his request was filed within the statutory deadline.

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

Court opinions issued Nov. 19, 2018

Charles v. DOJ (M.D. Pa.) -- dismissing suit against Bureau of Prisons because pro se plaintiff, a former prisoner, failed to prosecute claim after being released from custody.

Edmond v. United States (D.D.C.) -- ruling that plaintiff’s request for USPS file on plaintiff was not reasonably described because agency does not maintain centralized files on members of public.

Gonzales v. United States (D.D.C.) -- finding that Executive Office for United States Attorneys performed reasonable search for records pertaining to plaintiff’s criminal case and dismissing suit because plaintiff failed to respond to agency’s notice pertaining to estimated search fees.

Am. Marine LLC. v. IRS (S.D. Cal.) -- determining that: (1) IRS performed adequate search for plaintiff’s administrative files; (2) IRS properly withheld return information of plaintiff’s corporate alter ego pursuant to Exemption 3, in conjunction with 26 U.S.C. § 6103(a); and (3) IRS properly withheld third-party information pursuant to Exemption 6 and plaintiff’s “risk score” pursuant to Exemption 7(E).

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

FOIA News: ASAP announces "Food-for-Thought" FOIA seminar on Dec. 4

The American Society of Access Professionals will host its next lunch-and-FOIA program on December 4, 2018, in Washington, D.C. The seminar, which will be co-presented by our own Ryan Mulvey, will address “the basics of a reasonable search including email and e-discovery considerations.”

Additional information about this event is available here.

FOIA News: DDC rejects motion for preliminary injunction in FOIA case

District Court Rejects Preliminary Injunction to Force BCFP to Respond to FOIA Request

Weiner Brodsky Kider PC, JDSupra, Nov. 19, 2018

On November 1, 2018, the District Court for the District of Columbia denied a motion for a preliminary injunction to have the BCFP turn over documents related to a 2015 Civil Investigative Demand (CID) issued to a real estate website company.  The Court refused the preliminary injunction request because it concluded that the plaintiff had failed to establish a likelihood of success on the merits, show irreparable harm, or demonstrate that the balance of hardship and the public interest weigh in favor of injunctive relief.

The plaintiff in this case is lead counsel in a class action, where he represents purchasers of the real estate website company securities that was subject to a BCFP CID in 2015.  In the class action, the purchasers alleged the real estate company violated the Securities Exchange Act of 1934. However, that case was dismissed without prejudice with leave to amend.  The judge in that case directed the purchasers to file a second amended complaint by November 16, 2018.  As a result, the attorney submitted a FOIA request to the BCFP for records concerning the 2015 CID, but the Bureau did not provide the records within the 20-day statutory time frame set to respond to a FOIA request.  The attorney asked the court in the current case to issue a preliminary injunction ordering the Bureau to release all responsive records to the FOIA request, as he argued that these documents were critical to supporting the allegations in the second amended complaint.

Read more here.

[FOIA Advisor reported on the issuance of the decision discussed in this article, Baker v. CFPB, earlier this month.]

FOIA News: OGIS posts Thanksgiving greetings

OGIS gives thanks for . . .

Nat’l Archives & Records Admin., FOIA Ombudsman, Nov. 19, 2018

In this season of gratitude, we at OGIS would like to pause and give thanks for:

FOIA professionals: Our work resolving FOIA disputes and evaluating compliance brings us into contact with many FOIA professionals from many agencies.  We are thankful for how hard they work every single day to carefully balance the interests of disclosure with the interests of the Federal government to maximize disclosure and access to information to the extent possible.

The FOIA process: From estimated dates of completion to rolling releases to earnest efforts to narrow the scope of requests, we are grateful for examples of the FOIA process working as it should. This includes the administrative review process, which allows agencies to take a fresh look at initial processing decisions and often provides additional explanations of the agency’s actions.

FOIA geeks: Yes, it’s true, there are those who obsess over the FOIA and not just those of us at OGIS. We are grateful for our collaborative relationship with our colleagues at the Office of Information Policy at DOJ. We are grateful for members of civil society groups and academics who devote countless research and advocacy hours to our favorite Federal statute. We are grateful for organizations like the American Society of Access Professionals who make space for the free flow of new ideas. We are grateful for the special people from both inside and outside of government who have and are donating their time on the FOIA Advisory Committee, collaborating on ways to improve the FOIA process.

OGIS supporters: To the Archivist of the United States to our Federal agency and Congressional colleagues, and to the entire requester community, we are grateful for your support.

Above all, we are very grateful to all of the people who think and care about FOIA, advise OGIS and spur us on to tackle hard topics, all with the goal of making FOIA work better—and that includes you, our blog readers. Wishing you all a happy Thanksgiving!

Original post may be read here.

FOIA News: Intelligence Community IG cites lacking technology in FOIA handling

Intel Agencies Lack ‘Adequate Tech’ for FOIA Requests

Aaron Boyd, NextGov, Nov. 19, 2018

If the intelligence community wants to lessen its information request backlog and avoid lawsuits, the agencies need to make better use of technology and stop applying an “industrial age process … to a digital age challenge.”

A Sept. 28 report from the intelligence community inspector general released publicly last week found the agencies’ processes for responding to requests under the Freedom of Information Act, or FOIA, is inefficient and will continue to lead to growing backlogs and litigation if not improved. Among the issues is a lack of “adequate technology” to support processing FOIA requests.

Technology is being used to manage FOIA requests across the IC, though not uniformly. The inspector general looked at 10 standard use cases for technology in this area and found only the CIA was using those tools in every instance. Other agencies hit most of the areas of effort, though two, the Defense Intelligence Agency and the Office of the Director of National Intelligence, only showed progress in five and six areas, respectively.

Among the technologies, all six agencies reviewed were using tools to help with search, redaction and interagency referrals and consultations. On the low end, only three agencies—CIA, National Reconnaissance Office and the National Security Agency—were using technology to help with archive and retrieval of prior releases and for converting or otherwise preparing documents for dissemination.

Read more here.

Court opinions issued Nov. 15-16, 2018

Nov. 16, 2018

Talbott v. U.S. Dep’t of State (D.D.C.) -- finding that CIA and State Department performed reasonable, supplemental searches for records relating to President Kennedy’s assassination, and denying plaintiff’s bid to overturn six aspects of the court’s previous opinion.

Nov. 15, 2018

Jones v. U.S. Border Patrol Agent Hernandez (S.D. Cal.) -- summarily ruling that DHS performed reasonable search and properly withheld records pertaining to plaintiff’s arrest at U.S.-Mexico border, which led to dueling lawsuits between plaintiff and the arresting agent.

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