Q&A: I'm sticking with the Union

Q. Is a government contractor's collective bargaining agreement (CBA) exempt from FOIA?

A. Maybe. If the CBA is already in the public domain, then it is not exempt. If the CBA is not in public domain and it was was submitted to a federal agency as part of a contract proposal, the CBA would be fully exempt under Exemption 3 if the proposal was not successful. If the proposal was successful, however, Exemption 3 would protect any portion of the proposal that is not set forth or incorporated by reference in the contract   See generally OIP's guidance on contract proposals.

If Exemption 3 does not resolve the matter, Exemption 4 would certainly be in play, particularly if the CBA includes information such labor rates.  The agency would then need to initiate the "submitter notice" process per Executive Order 12600 and agency regulations.

FOIA News: SCOTUS sets hearing date for Exemption 4 case

Supreme Court sets date in Argus Leader case

By John Ellis, Sioux Falls Argus Leader, Feb. 11, 2019

The U.S. Supreme Court has set a date to hear a case that could determine whether taxpayer payments to businesses can be considered confidential information.

The outcome of Food Marketing Institute v. Argus Leader Media could have broad implications for what the federal government can keep secret under the Freedom of Information Act. The high court will hear the case on Monday, April 22.

Read more here.

FOIA News: Radio interview with USPS IG re: mistaken disclosures of personnel files

IG: Postal Service employee records disclosed in name of FOIA

Fed. News Network, Feb. 11, 2019

Weak controls at the U.S. Postal Service allowed confidential employee records to fly out the door on Freedom of Information Act requests. That’s according to the USPS Office of Inspector General, which first took notice because one of the former employees became a member of Congress. Lisa Nieman from the IG Office of Audit shared the details on Federal Drive with Tom Temin.

Court opinion issued Feb. 8, 2019

Allen v. BOP (D.D.C.) -- determining that agency conducted reasonable search for plaintiff’s prison records and properly relied on Exemptions 7(C), 7(E) and 7(F), except for use of Exemption 7(F) to withhold Central Inmate Monitoring information.

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

Court opinion issued Feb. 7, 2019

Lynn v. NARA (D.D.C.) -- holding that agency rightfully withheld CIA-generated records pertaining to the Grombach Organization pursuant to Exemption 1 and 3.

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

Court opinions issued Feb. 6, 2019

Winn v. DOJ (D.D.C.) -- determining that FBI properly construed scope of plaintiff’s three requests to be limited to records concerning plaintiff, and that agency performed adequate search and segregability review.

Curran v. USPS (E.D. Wis.) -- ruling that: (1) internet usage records of agency employees constituted agency records and were required to be released absent personally identifying information; (2) agency improperly relied on Exemption 6 to withhold “supervisor observation logs,” which generally describe what was occurring in agency computer lab and hallway; and (3) agency properly withheld records of investigation and discipline of low-level agency employee.

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

FOIA News: MuckRock is Crowdsourcing FOIA Ideas

Share your #FOIAFriday inspiration, win free swag!

We’re building a new database of FOIA ideas to showcase the power of transparency

By Michael Morisy, MuckRock, Feb. 6, 2018

Have a clever request you want to share with other requesters? Now’s your chance as we’re building the ultimate directory of FOIA and public records ideas to help new requesters get inspired while showcasing how valuable public records are in keeping government open and accountable.

You can submit your suggestions below. We’ll be reviewing submissions and publishing them all in a searchable database so that whether you’re looking for a random idea or trying to get a better sense of how to dive into a topic, you’ll be able to find other request ideas, request language, and expert tips to build off of.

If you’re new or relatively new to FOIA, you can browse through other requests people have filed to get a sense of how requests are phrased. In general, we’re looking for specific, repeatable request topics that others can learn from and use to explore issues.

Read more here.

Court opinions issued Feb. 5, 2019

Blakeney v. FBI (D.D.C.) — finding that: (1) Executive Office for U.S. Attorneys conducted adequate search for records pertaining to plaintiff’s criminal case and properly relied on Exemptions 5, 6, and 7(C); and (2) plaintiff’s claim against FBI was barred because plaintiff failed to pay FBI’s FOIA processing fees.

Det. Watch Network v. ICE (S.D.N.Y) -- ruling that plaintiffs were eligible and entitled to attorney’s fees and costs incurred during appellate litigation over immigration detention contracts, and that government was responsible for paying those fees even though third-party intervenors litigated at appellate levels.

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

Q&A: The Longest Day?

Q. I requested the results of an “AR 15-6” investigation by the U.S. Army in July 2018. How long does a FOIA request generally take?

A.  If an AR 15-6 investigation is as detailed as a typical federal prosecution file, then the Army’s delayed response is unsurprising.  I cannot accurately predict, however, how much longer it might take.  Note that the Army receives approximately 25,000 requests annually.  Although many of them are "simple" requests that closed within two months, "complex" requests such as yours invariably will take longer. You might consider contacting the Army’s FOIA Requester Service Center at (571) 515-0306. If you are not satisfied with the response from this center, contact the Army FOIA Public Liaison, Alecia Bolling, at (571) 515-0306.

FOIA News: HUD and Labor release FY18 annual FOIA reports

The first two cabinet agencies to release annual FOIA reports for fiscal year 2018 are the Department of Housing and Urban Development and the Department of Labor. HUD reported that it received 2,383 requests and processed 2,245 requests, increasing its pending inventory to 1054 requests. DOL reported that it received 14,696 requests and processed 14,679 requests, increasing its pending inventory to 1,500 requests.