FOIA Advisor

FOIA News: OIP Director's last day; more FOIA Guide updates

FOIA News (2015-2023)Allan BlutsteinComment
  • Congratulations and farewell to Melanie Pustay, who is retiring from the Department of Justice today after leading the Office of Information Policy for the past dozen years. Before becoming Director in 2007, Ms. Pustay served for eight years as OIP’s Deputy Director.

  • If you hadn’t noticed, OIP has been updating its online FOIA Guide throughout the year. The most recent sections to be updated are Litigation Considerations (9/25/19) and Procedural Requirements (9/4/19).

Q&A: The waiting is the hardest part

Q&A (2015-2023)Allan BlutsteinComment

Q. I made three FOIA requests to the U.S. Attorney's Office that prosecuted me in a criminal case. I currently have a motion before the Court complaining and objecting to the defendant's document submission. This was submitted seven months ago or more. The case has been languishing for almost three years now. What can I do about this when the Court seems disinterested or worse? Is there a motion that would remedy all this and bring it to an end that gives me the documents I asked for?

A. I have reviewed the docket sheet from your case. Although it is not entirely clear which motions are still pending, but I would note that it is not uncommon for a court to take one year to issue a decision. The ultimate "weapon" for a dissatisfied federal litigant would be a petition for a writ of mandamus, which is essentially a lawsuit against the district court judge. See Rule 21 of the Federal Rules of Appellate Procedure. I am not suggesting that you file (or not file) such a petition; I just wanted to make you aware of it.

FOIA News: DOJ ordered to produce first batch of Mueller report records by Nov. 1

FOIA News (2015-2023)Allan BlutsteinComment

Sluggish Record Output From Feds Stirs Court’s Ire

By Megan Mineiro, Courthouse News Service, Oct. 1, 2019

A federal judge pushed government lawyers Tuesday to explain why investigative bureau staffing has not grown commensurate with the tidal wave of Freedom of Information Act requests that courts are now enforcing. 

“It seems to me that they are just thumbing their nose at the FOIA statute because we are talking about years down the road,” U.S. District Judge Reggie Walton said this morning at a conference related to requests from BuzzFeed and CNN.

Both outlets have requested extensive records from the FBI related to former special counsel Robert Mueller’s investigation.

Read more here.

Court opinions issued Sept. 30, 2019

Court Opinions (2015-2023)Allan BlutsteinComment

Gwich’in Steering Comm v. U.S Dep't of the Interior (D. Alaska) -- granting government’s motion to transfer venue to the U.S. District Court for the District of Columbia, which is already adjudicating a similar case between overlapping parties.

Highland Capital Mgmt. v. IRS (N.D. Tex.) -- ruling that: (1) IRS performed adequate search for records concerning 2008 audit of plaintiff; (2) agency properly withheld records pursuant to Exemption 3 (in conjunction 26 U.S.C. § 6103(a)) and Exemptions 6 and 7(E); (3) agency’s withholdings under the deliberative process and attorney-client privileges were proper in part and improper in part; and (3) agency failed to justify withholdings under Exemption 3 in conjunction with 26 U.S.C. § 6103(e)(7).

Watkins Law & Advocacy v. U.S. Dep't of Veterans Affairs (D.D.C.) -- holding that: (1) Veterans Affairs properly relied on deliberative process and attorney-client privileges to withhold records pertaining to Brady Act regulations; (2) FBI conducted adequate search for various records concerning regulation of firearm ownership and it properly withheld records pursuant to Exemptions 5, 6, and 7(C); (3) Office of Attorney General failed to perform adequate search for requested records; and (4) Bureau of Alcohol, Tobacco, Firearms, and Explosives properly withheld internal talking points pursuant to deliberative process privilege.

Sigler v. HHS (C.D. Cal.) -- finding that agency conducted a reasonable search for records concerning plaintiff’s HIPAA complaints and properly withheld records pursuant to Exemption 4, 5, 6, 7(C), and 7(E).

O'Brien v. DOJ (E.D. Pa.) -- dismissing case against FBI because agency averred that it did not receive plaintiff’s requests, all of which were misaddressed.

Osen v. U.S. Central Command (S.D.N.Y.) -- ruling that plaintiff was barred by collateral estoppel from challenging redactions of names and identifying information of foreign nationals suspected of involvement in attacks on Americans in Iraq; alternatively holding that government’s redactions were proper pursuant to Exemption 6.

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

FOIA News: OGIS releases compliance assessment of U.S Dep't of Education

FOIA News (2015-2023)Allan BlutsteinComment

Education FOIA Compliance Assessment Report Now Available

OGIS FOIA Blog, Oct. 1, 2019

OGIS’s latest FOIA compliance assessment shows that opportunities exist for the Department of Education’s Chief FOIA Officer to fulfill the statutory duties of ensuring compliance with FOIA and recommending improvements to FOIA implementation.

The Department of Education assessment, the 13th conducted by OGIS, makes seven actionable recommendations for strengthening Education’s FOIA program, which received 3,041 FOIA requests in Fiscal Year 2018. OGIS assessments are based on analysis of FOIA data and applicable documents, direct observation and review of agency FOIA case files, a survey of agency FOIA professionals, and interviews with agency employees and officials.

Read more here.

Court opinions issued Sept. 29, 2019

Court Opinions (2015-2023)Allan BlutsteinComment

Barton v. U.S. Geological Survey (D.D.C.) -- awarding plaintiffs $61,619.81 in attorneys fees and costs for substantially prevailing in case involving research report about Rock Creek Park; deducting $44,000 from amount requested by plaintiffs after concluding that their attorneys’ hourly rates were too high and that their “fee on fees” request was excessive.

Judicial Watch v. CIA (D.D.C.) -- finding that: (1) FBI properly relied on Exemption 7(A) to withhold certain records concerning investigation of Michael Flynn; (2) Glomar responses of Treasury Department and CIA were not undermined by public statements of President Trump or White House.

Cause of Action Inst. v. U.S. Dep’t of the Army (D.D.C.) -- ruling that: (1) court did not have sufficient information to resolve question whether certain emails were Army, EOP, or both Army and EOP records; and (2) Army properly invoked Exemption 6 to withhold names of Army personnel below the rank of Colonel and civilian personnel below the GS-15 pay grade who did not otherwise interact with the media.

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

Court opinions issued Sept. 28, 2019

Court Opinions (2015-2023)Allan BlutsteinComment

Schneider v. DOJ (D.D.C.) -- ruling that FBI conducted adequate search for background investigation records pertaining to plaintiff and that it properly withheld contested records pursuant to Exemption 7(E).

Brady Ctr. To Prevent Gun Violence v. DOJ (D.D.C.) --finding that: (1) Bureau of Alcohol, Tobacco, Firearms and Explosives failed to perform adequate search for records concerning 2017 White Paper about reducing firearm regulations; and (2) ATF properly withheld email attachments wholly unrelated to subject of request as “out of scope.”

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

Q&A: Aim high

Q&A (2015-2023)Allan BlutsteinComment

Q. I requested Air Force personnel records under FOIA for a living person. A FOIA officer told me that a full SSN was required in order to locate the records because the subject had a common name and the files are indexed by SSN. Does this seem right? Is there a way for me to compel a search for records without providing the SSN?

A. I have encountered this problem every so often when seeking records from the official personnel files of former civilian employees and military service members. In each instance, I had provided the first five digits of the subject’s SSN (which is available though LEXIS/NEXIS), as well as a middle name, date of birth, and approximates dates of service. You can attempt to compel a search by appealing the agency’s determination and, if unsuccessful, filing a lawsuit. The agency would then have the burden of demonstrating that it is unable to retrieve the requested records using reasonable efforts.