FOIA News: USPS IG releases report on Spanberger’s personnel file

USPS IG clears conservative group of wrongdoing in Spanberger file release

At least 6 other former employees had their files improperly released after FOIA requests, IG found

By Griffin Connolly Roll Call, Jan. 4, 2019

The U.S. Postal Service inspector general officially cleared a prominent conservative research group of any wrongdoing for getting its hands on Rep. Abigail Spanberger’s complete and unredacted official personnel file last summer.

America Rising, a conservative opposition research group contracted by dozens of conservative PACs and campaign committees each election cycle to dig up dirt on Democratic candidates, went through the proper channels, submitting a Freedom of Information Act request for Spanberger’s file to the National Archives and Records Administration (NARA), the IG concluded in its report released in late December.

Read more here.

[P.S. I submitted the FOIA request in question on behalf of America Rising Corp.]

Court opinion issued Jan. 2, 2019

Sikes v. U.S. Dep't of the Navy (S.D. Ga.) -- on remand from 11th Circuit , which had held that agency could not refuse to process plaintiff’s duplicate request, ruling that: (1) plaintiff’s claim was not precluded by res judicata, (2) agency performed adequate and good faith search for records; and (3) plaintiff substantially prevailed and would be entitled to reasonable attorney’s fees and costs.

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

FOIA News: FOIA trends for 2019

3 Trends to Watch in Freedom of Information Act (FOIA) Requests for 2019

Keep an eye on the increased scrutiny of public officials’ and government agencies’ business conduct, slow responses to FOIA filings, and a growing awareness of privacy and cybersecurity topics.

By Jon Kerry-Tyerman, Legaltech News, Jan. 2, 2019

Want a preview of next year’s trends in Freedom of Information Act (FOIA) requests and responses? Here’s a hint: Topics in the public consciousness tend to play a big role. As 2019 approaches, keep an eye on the increased scrutiny of public officials’ and government agencies’ business conduct, slow responses to FOIA filings, and a growing awareness of privacy and cybersecurity topics when planning your department’s resources to prepare or respond to FOIA requests.

This follows the experience of 2017 and 2018, when legal news and trends bore a strong resemblance to one another. Increasingly, “all news is national,” with news out of D.C. and big corporations dominating legal headlines.

Here are three tends to look for in 2019:

Read more here.

Court opinion issued Dec. 26, 2018

Phillips v. DOJ (E.D. Cal.) -- ruling that plaintiff had failed to submit any new evidence warranting reconsideration of court’s earlier decision that plaintiff failed to meet statute’s six-year statute of limitations, and noting that state trial court judge’s statement about plaintiff’s federal records did not override FOIA’s statute of limitations.

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

FOIA News: Dep't of Interior to amend regs in response to FOIA burdens

Due to “exponential increases in requests and litigation,” the Department of the Interior issued a proposed rule on December 28, 2018, that would revise its FOIA regulations. Among the proposed changes, the Department would be able to “impose a monthly limit for processing records in response to your request in order to treat FOIA requesters equitably by responding to a greater number of FOIA requests each month.’’ Additionally, the Department may reject a request as unreasonably described if the request requires the agency to “locate, review, redact, or arrange for inspection of a vast quantity of material.”

Comments on the proposed rule must be submitted on or before January 28, 2019.

Court opinions issued Dec. 24, 2018

Sierra Club v. U.S. Fish & Wildlife Serv. (9th Cir.) -- on government’s appeal, affirming in part and reversing in part district court’s decision that government improperly relied on deliberative process privilege to withhold certain records generated during EPA rulemaking process concerning cooling water intake structures. A dissenting panelist noted that the Second Circuit had recently permitted the government to withhold similar records as deliberative.

Anguiano v. U.S. Immigration & Customs Enforcement (N.D. Cal.) -- on ICE’s renewed motion for summary judgment, finding that: (1) ICE’s supplemental search for records was adequate; (2) ICE improperly relied on Exemption 7(E) to withhold portion of handbook on "The Law of Arrest, Search and Seizure for Immigration Officers"; and (3) ICE properly withheld portions of its “Enforcement and Removal Operations” training manual.

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

Court opinion issued Dec. 20, 2018

Gahagan v. U.S. Citizenship & Immigration Servs. (5th Cir.) -- affirming district court’s decision that pro se attorney are ineligible for attorney’s fees in FOIA cases, reversing the Circuit’s position held since 1983.

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

FOIA News: Court questions White House review of Kushner records

Bureaucrats flagged White House on questions about Kushner. A judge says that's not normal

By Curt Devine, CNN, Dec. 20, 2018

A federal judge is questioning the White House's role in reviewing government documents related to a freedom-of-information lawsuit for records concerning President Donald Trump's son-in-law and adviser Jared Kushner.

The nonprofit watchdog organization Democracy Forward is suing agencies including US Citizenship and Immigration Services and the Department of Homeland Security for information that could indicate whether Kushner had any involvement in discussions about the extension of a program offering foreigners who invest in US businesses, including real estate, visas and a path to a US green card. The Kushner family's real estate company has used the program to court investors.

Read more here.

Court opinions issued Dec. 18, 2018

Elect. Privacy Inf. Ctr. v. IRS (D.C. Cir.) -- affirming district court’s decision that IRS properly withheld Donald Trump’s tax returns, but finding that proper basis for withholding was Exemption 3, in conjunction with 26 U.S.C. § 6103, rather than plaintiff’s failure to exhaust administrative remedies.

Reyes v. NARA (D.D.C.) -- awarding plaintiff $429.20 in costs and $19,939.20 in attorney’s fees (reduced from $29,450.80 due to duplicative efforts of plaintiff’s attorneys) for substantially prevailing in case concerning records of female Filipino guerrilla fighters during World War 2. Notably, the court held that its consent order memorializing the parties’ mutually agreed upon production schedule was sufficient to establish plaintiff’s eligibility for fees, rejecting NARA’s argument to the contrary.

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

FOIA News: NRC to increase FOIA fees

The Nuclear Regulatory Commission issued a direct final rule yesterday that would increase its hourly search rates, which were last changed in 2010. Specifically, searches performed by clerical staff would increase from a GS–7/step 6 salary rate to a GS–9/step 7 salary rate, and searches performed by professional staff would increase from a GG–13/step 6 salary rate to a GG–14/ step 7 salary rate.

This direct final rule is effective March 4, 2019, unless “significant adverse comments” are received by January 18, 2019.