The FOIA blog

Government Files Reply Brief in Bin Laden Death Photo Litigation

The blog of the Legal Times has the government's reply brief in the Osama Bin Laden death photo's FOIA litigation. 

The government is saying that the records are classified and are properly withheld pursuant to FOIA exemptions 1 and 3.  Judicial Watch, the plaintiff, will file its reply (they cross-moved for summary judgment and get another opportunity to respond) next month.  Once that happens, the district court will issue an opinion.

Candidate Transparency: It's Probably Not Going To Get Better For FOIA

Fox News has this article on transparency; the summary of the article is if Romney or Gingrich wins, they won't even promise to increase government transparency and if Obama is re-elected he will talk a good game but things will be like they currently are.  There are some candid quotes in the article; especially from Thomas Fitton, the President of Judicial Watch. 

I really doubt that FOIA and open government are much of a campaign issue this year, especially since there is no money to really fund the initiatives that need to be done to improve FOIA Operations at the agency level.

Court Rules Privacy Act Exemptions Are Retroactive

Judge Richard Seeborg of the Federal District Court for the Northern District of California has ruled that regulations issued in 2010 by U.S. Customs and Border Protection are retroactive to FOIA/Privacy Act requests made prior to their issuance.  The issue came about in a lawsuit filed in Hasbrouk v. CBP.  A detailed accounting of the request, along with the order, can be found on Mr. Hasbrouk's blog, Papers, Please!

The Court also found that the personal identifiers used by CBP to retrieve information on travelers may be withheld pursuant to FOIA Exemption 7(E). 

Finally, the Court found CBP's search inadequate on certain items and ordered CBP to conduct additional searches for material responsive to the request.

Cert Denied in Mug Shot Case

The Supreme Court has denied cert in the eleventh circuit decision that allowed for the withholding of mug shots -- the Sixth Circuit currently requires that they be released.

VA Releases Information on Live Vets to Ancestry.Com

Military.com reports that the Veteran's Administration accidently released information on 2200 living veterans to Ancestry.com in 2011.  According to the story, the VA was only supposed to release information on deceased veterans -- however, information on living veterans was also accidently released.  Veterans who had their information released will be notified by the VA and provided certain services such as credit monitoring.

An investigation into the incident is ongoing -- hopefully this will not happen again as it does not help either the requester community (agencies will now tend to shy away from making releases where possible) or those who had their material released.

 

Justice to Hold Working Group Meeting on FOIA IT

On January 26, 2012, the Department of Justice will hold a working group meeting for all FOIA professionals that deal with IT issues.  More information can be found here.

As the world shifts from paper to a more electronic and digital environment, these initiatives are a helpful and worthy thing for the government to be sponsoring.

FBI and Responsive Records

Here's an article from Truthout about the FBI and its search for and determination of whether or not records are responsive to FOIA requests.  I'm not sure I agree with the entire article, but I do believe the FBI takes a wide leeway in stating that records are either not responsive to a FOIA request or that it can not determine whether or not records are responsive to a request.  I also think the FBI does not do this for sinister or political reasons but soley to keep the amount of records and requests it has to process down for administrative purposes.  [Ed. note -- I worked in the FBI's FOIPA Section from 1998-2002 but never dealt with or heard of the issue of "blackballing"}

Department of Commerce, RIP?

The President has announced a proposed consolidation of a number of federal agencies, many of which are those dealing with business related issues.

There is a FOIA angle to this.  Many agencies will either cease being independent agencies or will be folded into other larger organizations.  As such, these agencies will, at the very least, have to adapt their FOIA regulations to their new homes or, if a new agency, publish new regulations.  The last time something of this magnitude occurred was when the Department of Homeland Security ("DHS") was created -- and for some DHS agencies, the FOIA aspect of this was not pretty as they had years of upheaval.  Hopefully, this transition will go smoother.

DOJ Categorical Denial Rejected By Court

Judge Gladys Kessler of the United States District Court for the District of Columbia has rejected the Department of Justice's argument that it could wholly protect investigative files of the FBI and Criminal Division on an investigation of Alaskan Congressman Don Young (R-Alaska).

The request was made by Citizens for Responsibility and Ethics in Washington ("CREW") [Ed. note -- I do legal work for CREW but was not involved in this case], and sought records of the investigation.  The investigation was specifically sought by Congress after a specific earmark was put into the legislation after it passed both houses of Congress but before it was signed by the President.  A large beneficiary of the earmark had held a fundraiser for Young at the time the legislation was moving through Congress.

The Department of Justice categorically denied the request based on the privacy exemptions (6 and 7(C)) claiming it would violate Young's privacy.  However, the court found that the public interest in the records outweighed Young's privacy interest and the government needs to process the records and file a Vaughn index if it wants to withhold any of the specific records in the file pursuant to Exemptions 6 and 7(C).  In other words, the government can not categorically deny the files; it must process them.

Politico has a link to the opinion and a summary of the case here.

Update:  Here's the AP story on the case that ran in the Washington Post.

Government Gives In on Secured Communities FOIA Request

Politico has this detailed report on the government's change of position on documents sought by requesters on the Secured Communities issue.  The government was appealing a decision to release documents they believed were covered by the attorney client privilege; however, according to the story, the government decided that a declaration it had relied on was not accurate and released the documents.