FOIA Advisor

Q&A: Crimes and misdemeanors

Q&A (2018)Allan BlutsteinComment

Q. I am aware of the attorney-client privilege and the crime-fraud exception with regard to attorneys for private parties, but does it apply in the case of attorneys with the government? Put simply, can government employees use government attorneys to further known fraud and illegal activities, and are those communications covered under the attorney-client privilege or can the privilege be pierced?

A. I am not aware of a FOIA case in which the court has actually overruled an agency’s withholding based on the crime-fraud exception, but district courts appear to be willing to consider its applicability. In 2014, for example, the Southern District of New York ultimately rejected that the exception applied to disputed documents, but stated that it was “skeptical of the government's contention that the crime-fraud exception has no applicability in the FOIA context."  Nat'l Immigration Project of Nat'l Lawyers Guild v. DHS, No. 11-3235, 2014 WL 6850977 (S.D.N.Y. Dec. 3, 2014). The court reasoned that "it is utterly implausible to suppose that Congress intended FOIA Exemption 5 to shield government documents when they were created for the purpose of furthering a crime or a fraud." 

Additionally, in 2015. the Eastern District of Pennsylvania evaluated whether records withheld in FOIA case under the attorney-client privilege fell within the crime-fraud exception (which the court stated was a “well-known” exception), but it concluded upon review of the disputed records that there was no evidence of crime or fraud. Pellegrino v. TSA No. 09-5505 (E.D. Pa. May 6, 2015). More recently, however, the Southern District of New York noted that it was “unclear whether a court construing FOIA could properly order disclosure based on the applicability of [the crime-fraud] exception.” Sorin v. U.S. DOJ, 280 F. Supp. 3d 550 (S.D.N.Y 2017).

FOIA News: Immigrant advocates file FOIA lawsuit against USCIS

FOIA News (2018)Ryan MulveyComment

USCIS Hit With FOIA Suit Over Citizenship Application Delays

Suzanne Monyak, Law360, Sept. 17, 2018

Several immigrant advocacy groups have accused U.S. Citizenship and Immigration Services of illegally withholding documents related to the agency’s handling of citizenship applications, claiming the government has not responded to the groups’ Freedom of Information Act request, according to a suit filed in California federal court Monday.

Los Angeles-based nonprofit Coalition for Humane Immigrant Rights and other advocacy organizations allege that USCIS violated the Administrative Procedure Act and the U.S. Constitution's due process clause by failing to respond within the statutory time frame[.]

Read more here (subscription required).

FOIA News: Senate Dems sue for Kavanaugh docs

FOIA News (2018)Allan BlutsteinComment

Six Senate Democrats file FOIA lawsuit to force release of Kavanaugh documents

  • Six Democrats on the Senate Judiciary Committee including Kamala Harris of California and Cory Booker of New Jersey filed a lawsuit on Monday seeking to force the National Archives and Records Administration and the Central Intelligence Agency to turn over documents related to Supreme Court nominee Brett Kavanaugh.

  • The suit, filed in the United States District Court for the District of Columbia, is in relation to three Freedom of Information Act requests submitted by members of the committee in early August.

  • The senators are demanding that the CIA and the National Archives produce documents related to Kavanaugh's time in the George W. Bush White House within twenty days of a court order.

By Tucker Higgins, CNBC, Sept. 17. 2018

Read more here.

FOIA News: FOIA Suit Seeks Docs On Alleged IRS Disclosure Of Tax Info

FOIA News (2018)Kevin SchmidtComment

FOIA Suit Seeks Docs On Alleged IRS Disclosure Of Tax Info

By Yvonne Juris, Law360, Sept. 14, 2018

A conservative watchdog has slapped the government with a Freedom of Information Act suit in D.C. federal court, saying the U.S. Department of Justice has refused to turn over documents on allegations that the Internal Revenue Service shared 1.1 million pages of confidential information on tax-exempt groups with the FBI.

Since filing its first of three FOIA requests in October 2016, the Cause of Action Institute has not received any documents from the Justice Department's Office of Information Policy or the Office of the Inspector General regarding 21 compact discs of tax data the IRS allegedly shared with the DOJ, the group said in its Thursday complaint.

Read more here (Subscription required).

Court opinions issued Sept. 14, 2018

Court Opinions (2018)Allan BlutsteinComment

Mabie v. U.S. Marshal's Serv. (S.D. Ill.) -- ruling that city jail and city police department were not agencies subject to federal Freedom of Information Act.

Property of the People v. OMB (D.D.C.) -- holding that: (1) OMB improperly relied on deliberative process privilege to withhold factual information from OMB Director’s calendar, such as names of schedulers, names of meeting attendees, and the locations of meetings; and (2) OMB’s filings were too vague to permit court to evaluate whether disputed calendar entries were protected from disclosure solely pursuant to presidential communications privilege or in conjunction with deliberative process privilege.

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

Court opinions issued Sept. 13, 2018

Court Opinions (2018)Allan BlutsteinComment

Niskanen Ctr. v. U.S. Dep't of Energy (D.D.C.) -- concluding that: (1) agency failed to perform reasonable search for records concerning federal advisory committee, namely National Coal Coalition or its incorporated counterpart NCC, Inc.; and (2) agency improperly withhold certain records pursuant to Exemption 4, because they were obtained involuntarily (contrary to agency’s claim) and agency failed to show that disclosure would likely cause substantial competitive harm; and (3) further briefing was required to determine whether on document was privileged under Exemption 4.

Cause of Action Inst. v. DOJ (D.D.C.) -- deciding after in camera review that: (1) DOJ improperly relied on attorney-client and deliberative process privileges to withhold portion of email between White House and Office of Information and Privacy concerning House Committee’s directive to agencies to withhold congressional records; (2) DOJ properly relied on same privileges to withhold communications among three DOJ components and undisclosed federal agency about same subject; and (3) it was unnecessary to resolve parties’ disagreement as to whether FOIA Improvement Act of 2016 raised requirement for withholding records.

Prechdel v. FCC -- finding that: (1) agency properly relied on deliberative process privilege to withhold communications among agency staff regarding public inquiry about proposed “Restoring Internet Freedom” regulations; (2) agency improperly invoked Exemption 6 to withhold email addresses of email associated with “bulk comment” submissions; (3) .CSV files themselves also could not be protected by Exemption 6, and ordering parties to meet and confer about their availability; and (4) agency properly invoked Exemption 7(E) to withhold electronic server logs detailing all dates and times that .CSV files were submitted.

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

Court opinion issued Sept. 12, 2018

Court Opinions (2018)Allan BlutsteinComment

Hillier v. CIA (D.D.C.) — ruling that: (1) CIA performed adequate search for unclassified records concerning plaintiff, who believes he is under surveillance, and that agency properly refused to confirm or deny existence of classified records pursuant to Exemptions 1 and 3; (2) DHS performed adequate search for records about plaintiff, who claimed he might have been mistaken for suspected terrorist, except with respect to one system of records; and (3) Department of State performed reasonable search for records concerning plaintiff’s alleged involvement in terrorist incidents.

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

FOIA News: Recap of argument re: Trump tax returns

FOIA News (2018)Allan BlutsteinComment

Lawyers Spar Over Trump Tax Return FOIA Suit at DC Circuit

At least one D.C. Circuit judge appeared skeptical of the DOJ argument that EPIC, the advocacy group seeking Trump's tax returns, hadn’t completed its Freedom of Information Act request.

By Ellis Kim, Nat’l L.J., Sept. 13, 2018

A U.S. Department of Justice lawyer told a D.C. appeals court Thursday that an advocacy group seeking President Donald Trump’s tax returns hadn’t “perfected” its open records request, but at least one judge on the panel appeared skeptical.

Attorneys for the advocacy group Electronic Privacy Information Center and the DOJ sparred before the three-judge panel on the U.S. Court of Appeals for the D.C. Circuit, as part of EPIC’s continued bid to force the IRS to hand over Trump’s tax returns. U.S. District Judge James Boasberg of the District of Columbia tossed its Freedom of Information Act lawsuit last year, a ruling Epic appealed.

Read more here.

FOIA News: FDA publishes proposed rule for revised FOIA regulations

FOIA News (2018)Ryan MulveyComment

The Food and Drug Administration published a proposed rule that would implement various revisions to its FOIA regulations in today’s issue of the Federal Register. Most of these changes are intended to bring the FDA into compliance with the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016. The agency last undertook a substantive revision of its FOIA regulations in July 2005. Public comments on today’s proposed rule will be accepted until November 13, 2018.