FOIA News: Judge presses DOJ on FOIA redactions to Mueller report

Judge questions Barr's handling of Mueller findings

By Jaqueline Thomsen, The Hill, Aug. 5, 2019

A federal judge in Washington, D.C., on Monday pressed Department of Justice (DOJ) lawyers on why the public shouldn’t be allowed to see redacted portions of former special counsel Robert Mueller’s report, suggesting that he may be willing to consider releasing at least some of the restricted document.

Judge Reggie Walton, an appointee of former President George W. Bush, posed the questions during a hearing on a pair of Freedom of Information Act (FOIA) lawsuits seeking the redacted portions of the report.

Read more here.

FOIA News: Recap of Chief FOIA Officers Council meeting

FOIA council seeks level playing field for ‘overwhelming’ IT acquisition process

By Jory Heckman, Fed. News Network, Aug. 5, 2019

Faced with another record-breaking year of new Freedom of Information Act requests, a governmentwide council of FOIA officers has recommended leveling the playing field for agencies struggling to modernize their IT amid a surging workload.

The Chief FOIA Officers Council’s technology subcommittee has recommended adding commercial, off-the-shelf FOIA and records management software to the General Services Administration’s schedules program, giving agencies an opportunity to purchase these tools without having to shop around for the best deal.

Read more here.

Court opinion issued Aug. 1, 2019

Flores v. DOJ (S.D.N.Y.) -- determining that Executive Office for United States Attorneys performed reasonable search for records pertaining to speeches given by Preet Bharara, U.S. Attorney for the Southern District of New York, and that disputed withholdings pursuant to Exemption 6 were proper.

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

Court opinions July 31, 2019

Gatson v. FBI (3rd Cir.) (not precedential) -- affirming district court’s decision that FBO properly withhold records concerning plaintiff’s criminal case pursuant to Exemption (7)(A) or, in the alternative, Exemptions 3, 5. 6, 7(C), 7(D) and 7(F).

Buckovetz v. Dep't of Navy (S.D. Cal.) -- denying government’s motion to dismiss plaintiff’s claims that: (1) agency has improper policy and practice of closing duplicative requests from same requester as moot; and (2) agency failed to provide all records in response to a duplicative request.

Inst. for Policy Studies v. CIA (D.D.C.) -- holding that agency improperly construed definition of a “record” and ordering agency to process entire six-page intelligence report even though the subject of request was mentioned in only one portion of report.

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

Court opinions issued July 30, 2019

Sauter v. Dep't of State (D.D.C.) -- concluding that U.S. Air Force, and CIA performed adequate searches for records concerning Korean War pilot, shot down in 1951, and that Defense Intelligence Agency properly determined that any responsive records would be maintained by Department of Defense’s POW/MIA Accounting Agency.

Am. Oversight v. DOJ (D.D.C.) -- ruling that Office of Information Policy performed adequate search for records concerning U.S. Attorney John Huber’s investigation into claims of FBI misconduct and that plaintiff was not entitled to discovery notwithstanding DOJ’s initial mistakes in earlier declaration.

James Madison Proj. v. DOJ (D.D.C.) -- finding that government had not justified its reliance on Exemptions 1, 3, 7(D), and 7(E) to redact FISA applications concerning Carter page in light of White House press release stating that President had directed government to declassify those records.

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

Court opinions issued July 29, 2019

Citizens for Responsibility & Ethics in Wash. v. GSA (D.D.C.) -- concluding that GSA failed to perform adequate search for communications between agency and White House concerning renovation of FBI headquarters..

Heartland Alliance for Human Needs & Human Rights v. DHS (D.D.C. 2019) -- ordering government to: (1) release location-identifying data in all produced records concerning Secure Communities program, (2) re-produce an earlier production in native format, and (3) release two Identifier codes in all produced records, which court found did not fall within Exemption 7(E).

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

Court opinion issued July 26, 2019

Mora-Villalpando v. ICE (W.D. Wash.) -- finding that: (1) ICE performed reasonable search for records concerning plaintiff, an undocumented immigrant and anti-ICE activist; (2) ICE failed to perform reasonable search for certain records concerning ICE enforcement operations against other immigration activists; and (3) plaintiff’s request for I-213 forms of other immigrations activists was not reasonably described in light of agency’s record system.

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

Q&A: Over the border line

Q. I sent a FOIA request [from The Netherlands] to the U.S Customs & Border Patrol on Feb. 28, 2019, and it has been stuck at the assignment stage. I was wondering if there is a way to expedite the process or file a complaint?

A. The agency’s delay entitles you to file a lawsuit in federal court. If you prefer not to take that step yet, you might consider asking the Office of Government Information Services for assistance.

Alternatively you can ask CPB to expedite your request -- that is, to move it up in the queue for faster processing . To do so, however, you would need to demonstrate a “compelling need” for expedition. You can meet that standard by showing, for example, that the failure to expedite could be expected to pose an imminent threat to life or safety or a loss of substantial due process rights. Alternatively, the agency would expedite your request if the matter at issue is of widespread media interest and affects public confidence in the federal government’s integrity.

Q&A: Come on, come through New York

Q. Do the federal FOIA laws apply to local municipalities in the state of New York? Are there penalties when they do not respond with complete information?

A. No, the federal statute is irrelevant to records maintained by state or local agencies. Agencies in New York must comply with Article 6 of the Public Officers Law, also known as the Freedom of Information Law (FOIL). An agency is not subject to “penalties” for failing to comply with FOIL. If a requester substantially prevails in a lawsuit, however, the requester would be entitled to attorney’s fees and other litigation costs if the court finds that the agency had “no reasonable basis” for denying access.

Court opinions issued July 25, 2019

Nat. Res. Def. Council v. EPA (S.D.N.Y.) -- holding that statute’s “foreseeable harm” standard “does impose an independent and meaningful burden on agencies” and rejecting “generic, across-the-board articulations of harm provided by the EPA as to a broad range of document types -- that "[r]elease of the withheld information would discourage open and frank discussion" and "have a chilling effect on the Agency's decision-making processes," -- does not sufficiently "explain how a particular Exemption 5 withholding would harm the agency's deliberative process."

Braun v. FBI (D.D.C.) -- finding that: (1) FBI and CIA performed adequate searches for records concerning plaintiff and his father; (2) FBI properly relied on Exemption 7(E) in refusing to confirm or deny whether plaintiff’s name appeared on any watch lists; and (3) CIA properly invoked Exemptions 1 and 3 in refusing to confirm or deny existence of responsive classified records.

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