FOIA Advisor

Court opinions issued Sept. 21-24, 2021

Court Opinions (2015-2024)Allan BlutsteinComment

Sept. 24, 2021

Campo v. NARA (D.D.C.) -- finding that plaintiff’s complaint properly alleged that NARA improperly withheld agency records and that NARA’s factual assertions as to whether the agency retained legal custody of requested records could not support a motion to dismiss.

Cox v. Bureau of Prisons (D.D.C.) -- determining that agency properly relied on Exemption 6 to withhold handwritten signatures from agency employees’ oaths of office.

Sept. 23, 2021

Ctr. for Investigative Reporting v. DOJ (9th Cir.) -- in 2-1 decision, denying petition for rehearing en banc and amending its December 3, 2021 opinion (but not its ultimate decision) to reverse district’s ruling as to whether Exemption 3 protected certain trace database data.

Sept. 22, 2021

Energy Policy Advocates v. U.S. Dep't of Interior (D.D.C.) -- holding that plaintiff failed to show that its request for records concerning senior advisor Elizabeth Klein satisfied statutory standard for expedited processing.

Am. Civil Liberties Union Found. v. DOJ (N.D. Cal.) -- ruling that three DHS components properly relied on Exemptions 5 and 7(E) to protect some, but not all, disputed records pertaining to social media surveillance.

Sept. 21, 2021

Sheppard v. DOJ (W.D. Mo.) -- concluding that Exemptions 5, 7(C), 7(D) protected some, but not all, records pertaining to DOJ’s investigation into a 1988 arson prosecution in Kansas City, Missouri.

Lewis v. Dep’t of the Treasury (D. Md.) -- finding that: (1) good cause existed to deny dismissal of pro se plaintiff’s FOIA claims on grounds of improper service; (2) plaintiff failed to administratively appeal 37 of 40 decisions by various Treasury components and the Department of Veterans Affairs (VA); and (3) with respect to the 3 requests that plaintiff did appeal, two Treasury components provided no additional arguments for dismissal and the VA failed to adequately justify its withholdings under Exemptions 5 and 6.

Bragg v. FBI (D.D.C.) -- deciding that: (1) FBI properly relied on Exemptions 6 and 7(C) to withhold names of third parties from records concerning plaintiff, and (2) plaintiff conceded agency’s argument that she failed to administratively appeal denial of separate request for records concerning third party.

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

FOIA News: Russ Kick, notable FOIA requester, dead at 52

FOIA News (2015-2024)Allan BlutsteinComment

By Harrison Smith, Wash. Post, Sept. 24, 2021

Russ Kick, writer, editor and ‘rogue transparency activist,’ dies at 52

Russ Kick, a writer, editor and self-described “rogue transparency activist” who pried loose government records, using Freedom of Information Act requests to obtain overlooked documents and peek behind the curtain of official secrecy, died Sept. 12 at his home in Tucson. He was 52.

His sister, Ruth Kick, did not give a cause but said he had been in poor health for more than a decade.

Mr. Kick’s interests extended from “undeleting,” as he sometimes called his document gathering, to classic literature, erotica, food and ancient meditation practices. “I can’t focus completely on any one thing for too long,” he wrote in an online biography. “My personal brand is a mess.”

Driven in part by a distrust of authority and an obsession with trivia, he wrote news articles for the Village Voice and edited myth-busting books such as “You Are Being Lied To” (2001) and “Everything You Know Is Wrong” (2002), which brought together the voices of scholars and journalists — including Howard Zinn and Noam Chomsky — to correct “media distortion, historical whitewashes and cultural myths.”

Kick edited “The Graphic Canon,” a book series that reimagined literary works as comics and visual art, as well as a spinoff series, “The Graphic Canon of Crime & Mystery.” (Seven Stories Press)

He also edited literary anthologies and “The Graphic Canon” series, for which he enlisted artists such as Robert Crumb and Will Eisner to reinterpret literary classics as comics and visual art. By turns bawdy and poignant, the series marked a kaleidoscopic alternative to the giant, doorstop literary anthologies published by W.W. Norton. “Work that might normally put you to sleep will leave you awe-struck,” artist and author Annie Weatherwax wrote in 2012, reviewing the first volume for the New York Times.

Mr. Kick’s work on the book series marked a temporary departure from some of his abiding interests: crusading against government secrecy and holding powerful people and institutions accountable. “I’m certainly not a journalist in the normal sense of the word,” he once told the Times. “I’m more of an information archaeologist. I’m trying to get the stuff that’s either been purposely buried or just covered over by time.”

Working largely on his own, without institutional support, Mr. Kick filed FOIA requests to obtain documents related to U.S. biological and chemical warfare programs, U.S. Border Patrol facilities, animal experimentation and a host of other issues. “Oftentimes it was those mundane requests that would be a critical resource years down the line,” said Michael Morisy, the co-founder and chief executive of MuckRock, a nonprofit news site where Mr. Kick had worked the past two years.

In an email interview, he added that Mr. Kick was “omnipresent” in the FOIA community, “the person you’d turn to every time there was a question about document arcana or the ins-and-outs of obscure filings.” Mr. Kick was also known as one of the first to regularly publish original documents in full, rather than to simply share quotes or transcriptions, according to Washington Post FOIA director Nate Jones.

“He influenced this generation of FOIA requesters by showing the power of posting the records unvarnished and letting them speak for themselves . . . His sites were completely dedicated only to that,” Jones said. “I suspect the hosting fees were quite high, yet nonetheless he was a declassified document posting machine.”

Mr. Kick started publishing documents in earnest in 2002, on a website he called the Memory Hole. Its name was a kind of reverse homage to the incinerator used to destroy embarrassing government files in George Orwell’s “1984.” (In later years, he created the websites Memory Hole 2 and AltGov2 to share his work.)

Among his first major releases was an unredacted internal report from the Justice Department, documenting harsh criticism of its diversity efforts. When the report was first published on the department’s website in 2003, half of its 186 pages were blacked out. Mr. Kick simply downloaded the file, opened it in Adobe Acrobat and used the “TouchUp Object” tool to highlight and delete the black bars.

“It was that simple,” he told the Times. “I was kind of surprised, but we are talking about a government bureaucracy, so I wasn’t that surprised.”

Six months later, Mr. Kick made headlines by publishing Pentagon photographs of the coffins of troops killed in Iraq and of service members caring for the remains of their fallen comrades, which he obtained through a FOIA request. The Defense Department had previously barred the publication of such photos and called their release a mistake.

Their publication on the Memory Hole, and later in newspapers and TV networks including CNN, ignited a national debate over access to wartime images, the privacy of military families and the human cost of war. “I’ve always thought that war should not be sanitized and airbrushed,” Mr. Kick told NPR, explaining his decision to publish. “I think people should see what the real results of war are.”

In a phone interview, BuzzFeed News investigative reporter Jason Leopold said the publication of the Iraq War photos inspired his own use of FOIA requests, often for documents that he had never previously thought to request. “I remember thinking to myself, ‘I want to duplicate that. I want to get documents,’ ” he said. “Russ went after records that we as journalists never went after, because we felt we would never get them.”

Russell Charles Kick III was born July 20, 1969, in Tuscaloosa, where his father was studying for a PhD in business and computer science at the University of Alabama. His mother was a homemaker, and his father later taught at Tennessee Technological University in Cookeville, where Mr. Kick graduated from high school.

Both parents had grown up in strict Catholic families before rebelling against organized religion — his father wrote a spiritual text called “The Key to Self-Discovery” — and encouraged their children to read widely, from Isaac Asimov novels to books about Eastern philosophy. “Most parents worry that their kids are going to grow up and join some cult,” his sister Ruth said. “My mom worried we were going to join the Catholic Church.”

Mr. Kick graduated from Tennessee Tech with a bachelor’s degree in psychology, then studied for a master’s degree in public policy at Vanderbilt University in Nashville before dropping out to focus on writing. “I started reading, writing, and over-collecting books at an early age and just rolled with it,” he later wrote. “I’ve always been interested in important things that are suppressed, ignored, or simply forgotten, so those became my themes.”

In 2017, he revealed that U.S. Immigration and Customs Enforcement officials had asked for official permission to destroy old documents about the deaths and sexual assaults of detained immigrants in their custody. Organizations including Citizens for Responsibility and Ethics in Washington sued the National Archives and Records Administration to block ICE’s plan to destroy the records. A federal judge ruled in March that the agency could not destroy the files.

“I do get angry when it’s obvious somebody is lying to us, or keeping something from us,” Mr. Kick had told the Los Angeles Times in 2004. “I take it personally.”

His marriage to Kimberly Gannon ended in divorce. In addition to his sister, of Oro Valley, Ariz., survivors include his mother, Jane Woody Kick, of Tucson.

David Cuillier, a University of Arizona professor who studies government transparency and public-records access, said Mr. Kick’s records requests “demonstrated that anyone could use FOIA to show the public what the government is up to.”

“His work has inspired other average people and journalists to push for government transparency,” he added in an email. “That has made the country stronger — in holding government accountable. What he did wasn’t easy, especially on his own time without institutional support. But it made a difference.”

FOIA News: How to tackle FOIA backlogs

FOIA News (2015-2024)Allan BlutsteinComment

To Address Growing FOIA Backlogs, Government Agencies Need to Govern More

By Doug Austin, JDSupra, Sept. 23, 2021

That’s all we need, right, for our government agencies to govern MORE?

Let me explain. We tend to think about government agencies differently from other entities that may have discovery needs and they are different – to a degree. One of the most noticeable differences for Federal government entities from other organizations is their responsibility to respond to Freedom of Information Act (FOIA) requests. But even though many government agencies have fully digitized the data being sourced to respond to FOIA requests these days, backlogs for FOIA requests for many of them are growing, not shrinking.

However, some of the best practices for addressing FOIA backlogs come from standard best practices that you can apply to any organization, not just government entities.

Read more here.

Court opinions issued Sept. 20, 2021

Court Opinions (2015-2024)Allan BlutsteinComment

Cincinnati Enquirer v. DOJ (S.D. Ohio) -- finding that DOJ properly relied on Exemption 7(C) to withhold in full records pertaining to criminal investigation of drug trafficking by third party.

Tobias v. U.S. Dep’t of the Interior (D.D.C.) -- determining that agency properly relied on Exemption 5’s deliberative process, attorney-client, commercial information, and attorney work-product privileges (the application of which plaintiff did not dispute), and that agency adequately demonstrated that foreseeable would result from disclosure of records related to activities of then-Secretary Zinke and other senior employees.

Waterman v. IRS (D.D.C.) -- On remand from D.C. Circuit to examine issue of segregability of documents concerning plaintiff, reaffirming that IRS properly relied on Exemptions 5 and 6 and expressly finding that all reasonably, segregable non-exempt records had been released.

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

FOIA News: DOJ releases assessment of Chief FOIA Officer reports

FOIA News (2015-2024)Allan BlutsteinComment

SUMMARY AND ASSESSMENT OF AGENCY 2021 CFO REPORTS ISSUED

DOJ/OIP, FOIA Post, Sept. 21, 2021

Today the Office of Information Policy (OIP) is pleased to release its summary and assessment of agencies’ 2021 Chief FOIA Officer (CFO) Reports.  As in prior years, OIP’s summary and assessment focuses on steps agencies have taken to improve FOIA administration in five key areas addressed in the Department's FOIA Guidelines:

  • Applying a Presumption of Openness,

  • Ensuring Agencies Have Effective Systems for Responding to Requests,

  • Increasing Proactive Disclosures,

  • Greater Utilization of Technology in FOIA Administration, and

  • Improving Timeliness and Reducing Backlogs.

This past March marked the twelfth year that agency CFOs submitted these reports to the Department of Justice.

Read more here.

Court opinions issued Sept. 17, 2021

Court Opinions (2015-2024)Allan BlutsteinComment

Knight First Amendment Inst. at Columbia Univ. v CDC (S.D.N.Y.) -- ruling that: (1) agency did not perform adequate search for records concerning communications policies about coronavirus, because it improperly interpreted scope of request, failed to use relevant search terms, and did not provide sufficient detail about its search methodology; and (2) CDC improperly relied on Exemptions 5’s presidential communications and deliberative process privileges to withhold certain documents (which were ordered to be released), and it failed to provide adequate information to permit ruling on another document (necessitating in camera review).

Webster v. DOJ (D.D.C.) -- determining that plaintiff was eligible and entitled to award of attorneys’ fees in nearly 20-year-old case; reducing requested award from $692,925 to $225,714, because plaintiffs’ attorney did not qualify for requested $1,000 hourly rate and plaintiff’s time entries contained clear recordkeeping errors and improperly included time spent on failed motions, as well as excessive time on litigating fees.

Leopold v. USCIS (D.D.C) -- (1) dismissing claims against DHS, U.S. Customs and Border Patrol and USCIS because plaintiff declined to oppose government’s motion; and (2) granting government’s motion for summary judgment with respect to U.S. Immigration and Customs Enforcement because plaintiff’s narrowed request for certain records of “any and all immigration and enforcement actions was too vague.

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

Court opinions issued Sept. 16, 2021

Court Opinions (2015-2024)Allan BlutsteinComment

Flyers Rights Educ. Fund v. FAA (D.D.C.) -- ruling that FAA properly relied on Exemption 4 in withholding records concerning the Boeing Company’s design changes to its 737 MAX jet airplane. In reaching its decision, the court rejected plaintiff’s arguments that FAA’s public commitment to “transparency” undermined agency’s assurances of confidentiality to Boeing or that alleged “importance” or “necessity” of withheld materials to public had any relevance under Exemption 4.

Office of Fulton Cnty. Dist. Att’y v. DOJ (N.D. Ga.) -- deciding that plaintiff was eligible for and entitled to attorneys' fees and litigation costs in case involving internal investigative records of U.S.Marshals Service employees, noting that the agency’s initial reliance on Exemption 7(A) to withhold records had been unreasonable.

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

FOIA News, ICYMI, Agriculture Secretary Vilsack thanks FOIA personnel

FOIA News (2015-2024)Allan BlutsteinComment

Secretary Tom Vilsack hailed the “outstanding” FOIA work of USDA in a department-wide letter sent on September 10, 2021.

USDA: Thank you FOIA professionals and information aggregators

Colleagues, 

I would like to highlight the outstanding work of USDA’s Freedom of Information Act professionals. Since 1967, the FOIA has provided the public the right to request access to records from any federal agency. It is often described as the law that keeps citizens in the know about their government. At USDA, we are committed to ensuring transparency and trust with the public. Although the USDA community has a number of full-time FOIA professionals, there are also many staff members performing FOIA functions across the country in addition to other assigned duties. This is testament to the shared responsibility and dedication towards this priority. I applaud the teams’ hard work and diligent effort to respond promptly to FOIA requests, to adapt a presumption in favor of disclosure, and to provide exemplary customer service for the tens of thousands of requesters seeking records annually.  

Read more here.

FOIA News: The FOIA Project expands its brief bank

FOIA News (2015-2024)Allan BlutsteinComment

The FOIA Project Expands its Brief Bank with Hundreds of Immigration-Related Court Documents

By Kristen Matteucci, Jenkins Law, Sept. 14, 2021

Did you know that the FOIA Project (FOIAproject.org) has a Brief Bank that collects “substantive briefs, motions, and testimony related to FOIA cases”?

The FOIA Project aims to “provide the public with timely and complete information about every instance in which the federal government grants or withholds records” requested under the Freedom of Information Act (FOIA). To that end, the project houses court dockets, complaints, opinions, and orders issued in FOIA lawsuits and FOIA appeals - brought in the U.S. district courts and the U.S. circuit courts, respectively - which challenge government withholding of requested information.

Read more here.