FOIA Advisor

Court opinions issued June 30-July 1, 2019

Court Opinions (2019)Allan BlutsteinComment

July 1, 2019

Jordan v. DOL (D.D.C.) -- denying plaintiff’s motion for relief from judgment, which had been affirmed by D.C. Circuit, that agency properly relied on attorney-client privilege to withheld one email concerning plaintiff’s litigation against third party.

June 30, 2019

Am. Ctr. for Law & Justice v. DOJ (D.D.C.) -- on renewed summary judgment, ruling that agency properly relied on deliberative process privilege to withhold draft talking points prepared for Attorney General concerning FBI’s investigation of Secretary Clinton’s email use and the Attorney General’s meeting with President Clinton at Phoenix airport in June 2016.

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

FOIA News: IG dings NARA on preserving electronic records

FOIA News (2019)Allan BlutsteinComment

National Archives Needs Better Handle on Agency Electronic Records, Says Watchdog

Challenges come from outdated technology, uncertain inventory of agencies.

By Charles S. Clark, Gov’t Exec., July 1, 2019

The government’s full-time archivists need to up their game in performing the 21st-century task of preserving the increasing portion of federal agency records that exist only in electronic form, a watchdog found.

Though the National Archives and Records Administration has made progress in strengthening and modernizing its handling of important agency documents, “permanent electronic records are still at a significant risk of loss and destruction,” according to a June report from the agency’s inspector general.

Read more here.

FOIA News: EPA Pushes Back Against Criticism of FOIA Regulation

FOIA News (2019)Kevin SchmidtComment

EPA's Response to Society of Environmental Journalists

This week several media outlets misrepresented EPA's new FOIA regulation, and were forced to correct their misreporting. This new regulation brings the Agency into compliance with the Congressional amendments to FOIA from 2007, 2009, and 2016. Congress provided all federal departments and agencies until the end of 2016 to update their FOIA regulations. The Obama administration failed to meet this deadline. 

Yesterday, the Society of Environmental Journalists (SEJ), whose mission states that they strive to "strengthen the quality" of environmental journalism, sent a letter to EPA Administrator Andrew Wheeler which included numerous inaccuracies that were regurgitated from false articles. Below is EPA's response to the SEJ, signed by EPA career officials.

BELOW IS THE LETTER IN FULL: 

Dear Director Parker: 

On behalf of the Administrator of the U.S. Environmental Protection Agency, we write in response to your letter dated, June 26, 2019. Together we manage the Agency’s National Freedom of Information Act Office, which advises the Agency on legal issues pertaining to FOIA requests, coordination, and project management. Additionally, we are the two career attorneys tasked with providing the recommendations to update the Agency’s FOIA regulations.  

This week EPA finalized an updated FOIA regulation that brings the Agency into compliance with a series of Congressional amendments. Unfortunately, a series of false and misleading claims have relayed inaccurate information to the public about this updated regulation. The Agency believes it is important to address these significant misrepresentations and emphasize that the update to the Agency’s FOIA regulation in no way expands or increases the authority of political officials in the FOIA process. The Agency’s updated regulation does not grant political officials’ additional authority to review or withhold FOIA documents, their authority will remain consistent with the authority granted to them under the past regulation.  

Read the full response here.


FOIA News: Business interests and FOIA

FOIA News (2019)Allan BlutsteinComment

How business interests shaped US public records law: Q&A with Jeannine Relly

By Clark Merrefield, Journalist Resource June 28, 2019

* * *

Journalists use FOIA to tell stories about government dealings that otherwise might be shut away forever. But obtaining information through FOIA can get tricky in practice, especially when government business and private industry interests overlap, which they often do.

We talked recently with Jeannine Relly, an associate professor at the University of Arizona School of Journalism, about how business interests have shaped FOIA amendments since the act was passed in 1966. Relly has extensively studied international right-to-know trends in journalism. In 2016 Government Information Quarterly published her paper, “How Business Lobby Networks Shaped the U.S. Freedom of Information Act: An Examination of 60 Years of Congressional Testimony,” written with Carol Schwalbe, director of the UA School of Journalism.

Read the entire article here.

Q&A: Discriminating against me, EEOC?

Q&A (2019)Allan BlutsteinComment

Q. EEOC denied my FOIA request for my own case. It said cases are not public record, and only become public record if a lawsuit is filed in federal court. The response cited Exemption 3 and the Civil Rights Act of 1964. How can I get a copy of my own file?

A. The agency’s response is consistent with the public guidance EEOC provides to FOIA requesters (quoted below) -- i.e., charging parties have a narrow window to access their files prior to filing a discrimination lawsuit. Once that time period expires, those files are inaccessible until a lawsuit is filed.

5. Can my request for a copy of my charge file denied?

Yes. The two most common reasons for denying a request are:

  • If you request the file before EEOC has completed its investigation and issued a notice of right to sue, the request will be denied pursuant to exemption (b)(7)(A) of the FOIA. This exemption allows us to deny a request to prevent interference with an ongoing proceeding. Our concern is that the premature release of documents while the file is open may interfere with the EEOC investigation; or

  • If you received a Notice of Right To Sue but did not use it within 90 days to access your file or to file suit, the request will be denied pursuant to exemption (b)(3). After the time to file a lawsuit expires, the CP is considered a member of the public. Sections 706(b) and 709(e) of Title VII of the Civil Rights Act of 1964, as amended, (Title VII), Section 107 of the Americans With Disabilities Act (ADA) and Section 206 of the Genetic Information Nondiscrimination Act (GINA) prohibit disclosure of charge files to members of the public. If you request a file after the NRTS has expired, you will be asked to present a copy of your court complaint, so that we can verify that we may disclose the file to you.

FOIA Focus: Eric Bolinder, Esq., Cause of Action Institute

FOIA Focus (2019)Allan Blutstein1 Comment
Yankees.jpg

When did you join Cause of Action and what are your main areas of practice?

I joined CoA in July of 2014.  My practice focuses on administrative law, including litigation in both federal district and appellate courts.  I also do a lot of transparency work, engaging in strategic oversight of the executive branch through investigations and FOIA litigation.

When did you submit your first FOIA request and what did you ask for?

My first FOIA request came in Fall of 2014.  It was to the Fish & Wildlife Service seeking a combination of records about broad subject areas and emails from specific individuals.  Reading it (I managed to dig it up for this interview!), it’s amazing to see how much I would change given the FOIA experience I’ve gotten in the past 5 years.  Narrower, focused FOIAs with defined search terms are the best way of getting quick FOIA productions

What is the most unusual agency response you have received to a FOIA request?

Oh this is one of my favorite FOIA stories.  One time I FOIA’d a number of agencies for text message records, which should be available under the statute.  However, most agencies simply do not have the technology to process them.  One agency, in an effort I appreciated, didn’t seem to know it could screenshot cell phone screens.  Instead, they took agency Blackberries, pulled up the texts, and then put them face down on a copy machine.  They then scanned those copies in and sent them to me.  I still laugh thinking about that one.  It’s also quite revealing of how far behind some agencies are with basic technology. 

If you could change one thing about the FOIA statute, what would it be and why? 

I think every FOIA litigator’s default response here would be to narrow exemption b(5), which I agree with, but let me try something out of the box.  On administrative appeal determinations for withholdings, agencies should be required to provide a sort of mini-Vaughn index.  Not something that hits the level of what’s required in litigation, but still requires a sworn declaration that the agency acted in good faith accompanied by a short explanation of the redactions.

In a recent ruling, a district court agreed with your argument that the FBI failed to show that exceptional circumstances justified a delay in processing documents.  What is the significance of this decision?  

The FBI has been seeking Open America stays in a number of its cases, asking for years of delays on releasing documents.  For our nation’s premier law enforcement agency, such delays on transparency are not acceptable.  Judge Kollar-Kotelly held that the FBI had not shown any exceptional circumstances, such as a spike in FOIA requests, and should be able to handle requests as quickly as usual.  This is critical because lawyers can take this decision and use it to stop the FBI’s attempts at Open America stays in other cases.  And, beyond that, it further establishes the bar all agencies must meet to get these onerous extensions.  In our case, the FBI had asked for a delay until December 25, 2020!  As much as I’d like to wake up to records under the tree…   

Where were you born/grow up? Where is your favorite hometown place to visit?

I was born in New York and grew up in Lancaster, PA. Favorite place is Lititz Springs Park.

If you could meet any historical icon, of the past or present, who would it be and why?

The Apostle Paul, who wrote nearly half of the New Testament.  Would love to spend time talking to him about his encounter with Christ, ministry, and the Gospel.  Thankfully, he wrote a lot of that stuff down already!

If you could watch only one movie again, which would it be and why?

Return of the Jedi, which I do watch again and again.  It’s not the best Star Wars movie, but it has it all: lightsaber duels, epic space battles, and Ewoks.  (Ok, just kidding on the last one).

It is no secret that the New York Yankees are your favorite baseball team.   Who would make your all-time best lineup?   

1B – Lou Gehrig

2B – Robinson Cano

SS – Derek Jeter

3B – Alex Rodriguez

C – Yogi Berra (Sorry Allan)

OF – Micky Mantle

OF – Babe Ruth

OF – Joe DiMaggio

SP – Roger Clemens

RP – Mariano Rivera

What are you really bad at that you would like to be better at?

Prayer, which has been a lifelong struggle for me.  It is such a privilege to be able to commune daily with God in prayer, and it’s something I’ve been working hard on lately. 

FOIA News: USCIS Expands FIRST: A Fully Digital FOIA System

FOIA News (2019)Kevin SchmidtComment

USCIS Expands FIRST: A Fully Digital FOIA System

Release Date: June 25, 2019

WASHINGTON— USCIS is announcing the expansion of its digital Freedom of Information Act (FOIA) Immigration Records System (FIRST). FIRST is the only system in the U.S. government that allows users to submit and track FOIA requests and receive documents digitally. This process will save time, improve efficiency, and reduce potential errors that can occur with manually handling paper.

Starting today, FOIA requestors with a USCIS online account can submit requests online for their own records. Soon, they will be able to submit online requests for non-A-File material (policies, communications, etc.) Later this year, USCIS online account holders can make requests on behalf of another person.

Read more here.

Court opinions issued June 24-25, 2019

Court Opinions (2019)Allan BlutsteinComment

June 25, 2019

Nikaj v. U.S. Dep't of State (W.D. Wash.) -- concluding that agency properly withheld certain records concerning plaintiff’s unsuccessful visa applications pursuant to Exemptions 3 (Immigration & Nationality Act), 6, and 7(C).

Judicial Watch v. DOJ (D.D.C.) -- finding that FBI properly relied on attorney-work product privilege to withhold agent interviews of President Obama and his advisors concerning former Illinois governor Rod Blagojevich.

June 24, 2019

Food Marketing Institute v. Argus Leader Media (S.Ct.) -- reversing Eighth Circuit’s decision and holding that commercial and financial information is “confidential” under Exemption 4 when it is customarily and actually treated as private by its owner and provided to the government under an assurance of privacy,

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

FOIA News: Robert Freeman, renowned public records expert, fired for misconduct

FOIA News (2019)Allan BlutsteinComment

Advocate Dedicated to Uncovering Government Secrets Is Fired for Sex Harassment

Robert Freeman, a nationally known force for government transparency, engaged in “unwanted physical contact” with a female reporter earlier this year.

By Jesse McKinley, N.Y. Times, June 25, 2019

For more than four decades, Robert J. Freeman was a champion of government transparency in New York.

As the executive director of the Committee on Open Government, he helped offer access to records that the state might have otherwise been happy to shield. But a state investigation revealed he had kept secrets of his own.

On Monday, he was fired after the inquiry showed he had sexually harassed a female reporter and engaged in other inappropriate sexual behavior using his state-owned computer.

Read more here.

[ALB comment: The FOIL godfather foils his career and legacy. Sad.]