FOIA News: Senators unhappy with EPA and Interior regulations

Lawmakers talk legislation in response to FOIA changes

By Miranda Green, The Hill, July 7, 2019

Senators from both parties are unhappy with new Trump administration rules giving political appointees at two government agencies more power to review public information requests, and they say they may craft legislation to fix it.

The new rules for considering Freedom of Information Act (FOIA) requests at the Interior Department and Environmental Protection Agency have provoked complaints from the media and outside groups, and the senators say they go in the opposite direction in terms of providing access to government records.

Read more here.

Court opinions issued July 3, 2019

Davis v. FBI (D.D.C.) -- finding that: (1) FBI and Secret Service performed adequate searches for records concerning plaintiff; (2) FBI properly withheld records pursuant to Exemption 3, in conjunction with the Bank Secrecy Act, and Exemptions 6, 7(C), 7(D), and 7(E); and (3) Secret Service properly withheld records pursuant to Exemption 3, in conjunction with Federal Rule of Criminal Procedure 6(e), and Exemptions 6 and 7(C).

Pichardo-Martinez v. USMS (D.D.C.) -- concluding that agency failed to demonstrate the adequacy of its search for records concerning plaintiff and failed to justify its application of Exemption 7(C) and 7(E).

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

Court opinion issued July 2, 2019

Democracy Forward Found. v. GSA (D.D.C.) -- holding that electronic communications of President-elect Trump’s transition team were not agency records subject to FOIA.

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

FOIA News: USCIS to demonstrate its new FOIA system

Upcoming USCIS Webinar

Office of Gov’t Info. Serv., July 3, 2019

Thinking about FOIA beyond its 53rd birthday on July 4th? Interested in how to submit and track FOIA and Privacy Act requests and receive documents digitally from U.S Citizenship and Immigration Services (USCIS)? The agency will demonstrate the system and answer the public’s questions during  an hour-long webinar at 2 p.m. EDT Tuesday July 9th.

Read more here.

FOIA News: State Dep't official testifies that he warned Clinton aides about private emails

Top State Department Record-Keeper Says He Warned Clinton Team on Emails

By Mark Tapscott, Epoch Times, July 2, 2019

Former Department of State Director of Information Programs and Services (IPS) John Hackett warned key Hillary Clinton aides about their failure to preserve official business emails on her private server, Judicial Watch announced Tuesday.

“Well, we heard that there were 50,000 or 60,000 emails, and that they had—‘they’ being the secretary’s team—had culled out 30,000 of these,” Hackett told Judicial Watch during a recent deposition.

The non-profit government watchdog made the Hackett deposition public Tuesday. Clinton was secretary of state from 2009 to 2013 and used a private email system throughout her tenure to conduct official diplomatic business.

Read more here.

Court opinions issued June 30-July 1, 2019

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

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

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

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. 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.