FOIA News: Registration open for FOIA Advisory Committee meeting

Join us Virtually for the September 10 FOIA Advisory Committee Meeting

Office of Gov’t Info. Serv.,, Aug. 20, 2020

Register now to join us virtually on Thursday, September 10, 2020, from 1:00 to 4:00 p.m. ET at the first meeting of the Freedom of Information Act (FOIA) Advisory Committee’s 2020-2022 term. The meeting is open to the public; however, you must register to receive information for accessing the meeting online.

Following their introductions,  Committee members will hear reports from the co-chairs of the Chief FOIA Officers Council Technology Committee and returning Committee members before discussing topics for the Committee to consider in the next two years.

Read more here.

FOIA News: FOIA records posted by FBI cause angst

‘Wildly irresponsible’: FBI bashed for tweeting link to anti-Semitic ‘Protocols of the Learned Elders of Zion’

By Jaclyn Peiser, Wash. Post, Aug. 20., 2020

For more than a century, the fabricated text “The Protocols of the Learned Elders of Zion” has advanced a persistent anti-Semitic trope: that Jews are plotting to take over the world. From Hitler to Henry Ford, rabid anti-Semites have long shared the notorious text.

On Wednesday, an FBI Twitter account did the same. An account called FBI Records Vault tweeted out a link to a PDF containing the anti-Semitic tome as well as FBI documents related to it, with no other context, leaving critics baffled and outraged.

The FBI later apologized and clarified the account is automated and sends links to records that have been made public via Freedom of Information Act requests.

Read more here.

FOIA News: Exemption 4 fails in non-FOIA contract case

In a non-FOIA case, the Civilian Board of Contract Appeals concluded that Exemption 4 did not protect the U.S Department of Education's financial details concerning its claims that it overpaid on a student debt  collection contract. In reaching its decision, the Board noted that most of the information at issue originated from the Department, thus falling outside of Exemption 4. The Board further noted that the Department had waived its ability to rely on Exemption 4 because it voluntarily made the information publicly available in earlier filings in the case. Lastly, the Board found that the Department failed to show that disclosure would reasonably harm an Exemption 4-protected interest, rejecting Department’s argument that its “fear of discovery problems” in another case was sufficient.  

FOIA News: SCOTUS to hear Exemption 5 case on Nov. 2

Supreme Court Sets Argument Date for Sierra Club FOIA Case

By Ellen Gilmer, Bloomberg Law, Aug. 19, 2020, 1:23 PM

The U.S. Supreme Court will hear oral arguments Nov. 2 in a closely watched dispute over Endangered Species Act documents.

The court released the November schedule Wednesday, placing the case first for the month. The justices have a small environmental docket for the 2020 term so far, with just two cases on deck—though several more could be added.

• At issue in the endangered species case is whether the Freedom of Information Act requires federal agencies to hand over certain internal records that are labeled “drafts.” The dispute stems from a lower court order that said the U.S. Fish and Wildlife...

See full article here (accessible with subscription).

FOIA News: Lawsuit seeks records about sale of NARA’s Seattle office

Washington AG sues for public records on National Archives closure

Daily World, Aug. 18, 2020

After six months with no reply from three federal agencies for public records on the closure of the National Archives at Seattle, state Attorney General Bob Ferguson on Monday sued them in federal court.

A fourth agency, the little-known, five-person Public Buildings Reform Board that made the recommendation for closure, on July 20 had demanded $65,400 “to redact the material for production to your office.”

Says Ferguson, “This is not a national security issue. What do they have to redact? It’s a property sale. It’s outrageous that after six months, they want the taxpayers of Washington to pay $65,000 so they can make redactions.”

Read more here.

Court opinions issued Aug. 14, 2020

In re: Hillary Clinton (D.C. Cir.) -- finding that district court clearly abused its discretion in authorizing depositions of Hillary Clinton and Cheryl Mills, and granting the former’s petition for mandamus but not the latter’s because Ms, Mills had other means to attain relief.

Whitaker v. Dep’t of Commerce (2nd Cir.) -- affirming district court’s decision that : (1) the First Responder Network Authority, an independent entity within the Department of Commerce’s (DOC) National Telecommunications and Information Administration (NTIA), was not subject to FOIA; and (2) DOC and NTIA properly declined to search for requested records because such searches would have been futile, adopting D.C. Circuit’s standard.

Citizens for Responsibility & Ethics in Wash. U.S Dep’t of Commerce (D.D.C.) -- concluding that: (1) Department waived use of deliberative process privilege because it disclosed disputed records to third party and took no steps to rectify the disclosure; and (2) Department properly relied on Exemption 4 to withhold records provided under implied assurance of confidentiality.

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

FOIA News: ICE tries to put request on ice

DC Judge Calls ICE's 66-Year FOIA Doc Plan 'Unsatisfying'

Law360, Aug. 14, 2020

U. S. Immigration and Customs Enforcement says it will take 66 years to sift out the sensitive information from a round of immigration database documents that it has been ordered to turn over as part of a long-running records fight — unwelcome news to the D. C. federal judge overseeing the case. U. S. District Judge Amit P. Mehta said at a virtual status conference on Friday that he was very frustrated to hear the government's time estimate, particularly because  the parties are six years into the dispute over technical documents tied to two ICE database.

Read full article here (accessible with free subscription).

FOIA News: D.C. Circuit rejects bid to depose Hillary Clinton

Appeals court blocks Hillary Clinton deposition on private email server

By Harper Neidig, The Hill, Aug. 14, 2020

A federal appeals court on Friday blocked a judge's order that Hillary Clinton be deposed as part of a conservative group's lawsuit for records related to the private email server she used while serving as secretary of State.

A three-judge panel on the D.C. Circuit Court of Appeals ruled unanimously that the Freedom of Information Act (FOIA) lawsuit filed by the conservative group Judicial Watch did not merit the level of legal inquiry that would require Clinton to sit for a deposition.

Read more here.

Court opinions issued Aug. 13, 2020

James Madison Proj. v. Dep’t of the Treasury (D.D.C.) -- ruling that Office of the Comptroller of the Currency properly relied on Exemption 8 to withhold its final conclusions of its examinations of forty banks with respect to their sales practices.

Arab Am. Inst. v. OMB (D.D.C.) -- concluding after in camera review of disputed documents that OMB properly relied on Exemption 5’s deliberative process privilege to withhold draft recommendations and proposals concerning use of “Middle Eastern and North African” as race category in 2020 Census.

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

Court opinions issued Aug. 12, 2020

Wattleton v. DOJ (D.D.C.) -- deciding that plaintiff failed to show that DOJ or OIP received his administrative appeal, which was improperly addressed, and that no extraordinary circumstances existed to excuse his improper mailing.

Hall & Assoc. v. EPA (D.D.C.) -- holding that agency properly relied on Exemption 6 to withhold email distribution lists constructed primarily by individual users who voluntarily signed up to receive agency updates.

Stelmaszek v. Dep't of Veterans Affairs (D.D.C.) -- finding that agency released in full all records in response to one of plaintiff’s requests, and that agency was not responsible for processing second request that plaintiff sent to wrong address.

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