The FOIA blog

2007 Countdown: Top Story Number 1--FOIA Legislation

2007 saw manic activity in the bipartisan congressional effort to amend the FOIA.  After failing to pass legislation in the Congress ushered out in the November 2006 elections, the Democratic majority promised to put forth FOIA amendments in 2007. 

In February of 2007, the House of Representatives introduced legislation amending the FOIA, held hearings and approved the bill in March of 2007.  The Senate introduced its version of the legislation in March of 2007.  The legislation passed the Judiciary Committee in April of 2007.  However, Sen. Jon Kyl placed a secret hold on the legislation in June of 2007 (his secret hold was outed by bloggers soon thereafter).  After negotiations with Kyl (supposedly doing the bidding of the Attorney General), the legislation was amended and passed by the Senate in early August 2007.

However, when the two bills went to conference, a problem occurred because of congressional rules on paying for legislation.  To get around this problem, a new bill was introduced and passed in the Senate in December (ironically, Kyl in a 1984 type move, became a co-sponsor of this new bill).  The House passed the bill on December 18.

The legislation basically does a number of things.  It introduces an ombudsman for disputes between agencies and requesters, it changes the standard for requesters to receive attorney fees when bringing a law suit and it provides for a mechanism where requesters are able to track their FOIA requests.

What the legislation does not do is limit or change any of the current exemptions used by the government to deny requests nor does the legislation in any way fund agency FOIA operations so that requests can be answered in a timely manner.

This was the top story for the year for a number of reasons.  It attempted to fix some of the problems facing the FOIA.  It demonstrated the problems the legislative process has that were not envisioned by the founding fathers ("secret holds" for one).  And finally, it shows that even with this new legislation, the FOIA still needs a lot of help from Congress to be as effective as envisioned when first passed many years ago.

2007 Countdown: Top Story Number 2--Major Case Decisions

Each year, hundreds of FOIA cases are decided by federal district and circuit courts and 2007 was no different.  This year, three opinions, two at the appeals court level and one at the district court level, I felt, have implications that go beyond the individual case the opinion was rendered in.

At the district court level, the opinion in People for the American Way Foundation v. Department of Education, the District Court for the District of Columbia found in a lengthy analysis, that under the Supreme Court's holding in Dep't of the Interior & Bureau of Indian Affairs  v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001), documents exchanged between the government and outside entities were not "intra or inter agency" and therefore were not protected pursuant to Exemption 5. 

At the appeals court level, I submit that the United States Court of Appeals for the Tenth Circuit's decision in a case brought by Jesse Trentadue in his attempt to get certain documents submitted by the Department of Justice's Office of the Inspector General ("OIG") concerning an investigation of the OIG by the Integrity Committee, a subdivision of the President's Council on Integrity and Efficiency is one of the most important decisions of the year. 

Trentadue lost his lawsuit at the District Court level--the District Court for the District of Utah had granted summary judgment for the government.  However, the Tenth Circuit found that Exemption 5 did not apply to much of the factual material in the withheld documents.  In making this decision. the Court found that factual material in otherwise deliberative material could only be withheld where disclosure would so expose the deliberative process that the material must be exempt.  The Court found that the factual information in the responsive documents did not meet this standard and must be released.  he Court also found that the identity of certain individuals could not be withheld pursuant to FOIA Exemption 6 where the identity of the individuals had previously been identified in a separate but related public document.  The Court also ruled that the public interest outweighed the privacy interests of these individuals and this information was not protected pursuant to FOIA Exemption 7(C).

The government's motion for reconsideration of this opinion was later denied, making this decision the law of the Tenth Circuit, which would now be a very good place to bring a FOIA lawsuit.

The other major decision this year is the recent decision by the United States Circuit Court for the District of Columbia brought by Jefferson Morley against the CIA where the appeals court reversed a  lower court ruling for the CIA, requester Jefferson Morley sought records on George Joannides, a deceased CIA agent.

The Circuit Court found that the CIA's search wasn't adequate as it hadn't search usually FOIA exempt operational files because in this case there was an exception that made these files non-exempt from the FOIA in their entirety.  The Court remanded the case back to the lower court for the CIA to search its operational files.  Further, the CIA was ordered to search JFK act files that it had transferred to NARA, but had admitted to keeping copies of as well as to sent to NARA but that aren't to be released to the public until 2017.  Finally, the Court found the CIA's description of its search inadequate and remanded the case for a further explanation of the search.

While the Circuit Court found the CIA Vaughn Index adequate, it found the lower court did not make a segregability finding and remanded the case for it to do so.  The Circuit Court also found that the CIA had properly justified its use of Exemptions 1, 3 and 7(E). 

However, the Court found a number of deficiencies with other exemptions and remanded those portion of the case for further agency explanation.  The Court found that as to Exemption 2, the CIA did not meet its burden in establishing its use of low-2 to withhold certain material and remanded for further explanation.  Likewise, the Court found that the CIA's defense of it's glomar response was also inadequate and remanded that portion of the case for further explanation.  Next, the Court found that the CIA's justification of Exemption 5 was inadequate, thus on remand the CIA will have to explain that exemption's use further.  Finally, the Court also found that the CIA's justification of exemption 6 was inadequate as it never established that any privacy interest in the withheld records existed.a FOIA lawsuit.

With this decision, the D.C. Circuit, where the most FOIA appeals are brought, stated that it won't just rubber stamp agency decisions on FOIA actions.  This may be one of the best things to happen for requesters in 2007.

2007 Countdown: Top Story 3-- Spy Agencies Pressed For Litigation by Various Groups

The use of FOIA to shed light on government activities was best illustrated by the Electronic Frontier Foundation ("EFF") and the ACLU in 2007.  These groups requested and sued spy agencies like the CIA and NSA for information on their various activities that they would like to not reveal anything about for reasons that probably have little to do with National Security and more to do with politics.

The ACLU sued the Department of Defense and the Central Intelligence Agency over FOIA requests submitted to the two agencies concerning their use of National Security Letters.  Later in the year, the ACLU sought sanctions against the CIA for its destruction of torture video tapes that it had said in an earlier FOIA lawsuit it did not have.

The EFF sued the FBI over data concerning its use of National Security Letters, and received information on a previously brought lawsuit concerning the NSA's wiretap program.   Additionally, the EFF was granted an injunction against the Office of the Director of National Intelligence, where the Court Ordered the government to produce records on an expedited schedule.

These cases showed that FOIA is relevant and can be used to allow the public to know just what its government is up to (even if the government doesn't really want to cooperate on that end). 

2007 Countdown: Top Story Number 4--Changes at DOJ

2007 saw the first major change in FOIA policy personnel in nearly a quarter of a century at the Department of Justice. 

In the Fall of 2006, Dan Metcalfe, the Director of the Department of Justice's Office of Information and Policy ("OIP") announced that he would retire early in 2007.  Metcalfe went to the law school at the American University to become a Faculty Fellow in Law and Government and the Executive Director, Collaboration on Government Secrecy.  He also made a number of appearances in the media, speaking out on Attorney General Gonzales tenure at the Department of Justice, among other things.

Meanwhile, at the Department of Justice, Melanie Pustay, a career attorney with OIP was named to the position of Executive Director of OIP in April of 2007. 

Why is this important?  The Director of OIP is involved in many FOIA policy decisions, such as whether the government should appeal adverse FOIA Opinions made by the Judicial Branch, what DOJ FOIA publications should say, and generally what policies the government should make in disclosure overall.  OIP has a large hand in the memorandums on FOIA issued by Attorney Generals and Executive Orders from the President on FOIA.  Thus, the head of this office has a large say in how the government will view FOIA.

It's too early to say what impact the change has actually had on FOIA, however, over time, FOIA watchers will be able to see where DOJ is taking FOIA policy.

FOIA Bill Passes Congress

Amendments to the FOIA passed the House of Representatives on a voice-vote yesterday.  This was the same bill passed by the Senate last week.  It now goes to the President for his signature and then after a waiting period will become law.

As I've said many times, the bill, while overall a positive, doesn't address many of the important issues facing agency FOIA operations such as funding of these offices.  Thus, I don't see a great improvement overall to requesters from this bill, standing alone.  I know I'm in the minority on this one, but if I'm a Congressman who really cares about FOIA, I make sure agency operations are funded.  More importantly, I have real oversight hearings on an ongoing basis that question those in charge of FOIA and those in charge of those who are in charge of FOIA (a wordy sentence, but read it slow and think about it--especially if you or someone you know works in a government FOIA office) to make sure that FOIA operations are operating at full strength.

FEMA Pays $105,000 in FOIA Attorney Fees

The federal government has paid $105,000 in attorney fees according to this editorial about the FOIA.  The fees were paid in a case brought against FEMA by the News-Press and its sister Gannett Co. papers, The Pensacola News Journal and Florida Today, for the release of public records showing how FEMA distributed $1.2 billion in disaster aid to 1.1 million people in Florida after four hurricanes struck the state in 2004.

FEMA refused to give details about who received the aid, and eventually the plaintiff's information  prevailed in the Eleventh Circuit Court of Appeals.  Of course, the money doesn't come from FEMA Operations, so except for the egg FEMA Officials have on their face (except it appears from past actions, it is very hard to embarrass FEMA Officials), there are no real repercussions to the agency for its FOIA stonewall.

2007 Countdown: Top Story Number 5--PA Attempts to Change its Right to Know Law

This year, the biggest story at the state level, has been Pennsylvania's attempt to change its anti-requester friendly Right to Know law to a more disclosure friendly Open Records Law.  Unlike other states, this is more than just adding a few amendments to an open records bill that is already law.  This exercise is an attempt to replace a bill that says the public can't have records unless it fits into one of the categories that the government says they can have to a new bill that says records are public can have records unless they are otherwise exempt. 

The Right to Know Law became an issue in the 2006 election.  After the election, the legislature and the governor introduced changes they wanted to the Right to Know Law.

During the summer of 2007, the Pennsylvania Senate and the Pennsylvania House took up the task of changing the law.  Eventually, both passed changes and as of early December, both houses are working on a final version of the bill that can be sent to the governor.

WH Visitor Records Are Agency Records Subject to the FOIA

Judge Royce C. Lamberth of the United States District Court for the District of Columbia has ruled that White House visitor records created by the Secret Service are agency records subject to the FOIA.

In a lawsuit brought by Citizens for Responsibility and Ethics and Washington ("CREW") (note:  I do legal work for CREW, but have not been involved in this matter) against the Secret Service concerning visitor records of religious leaders who have visited the White House, the Secret Service claimed the requested records were not within its control and therefore not subject to the FOIA. 

This decision also has repercussions on other cases pending on White House visitor records, such as the one brought by CREW on visitor records of Jack Abramoff and associates.  A fact that was noted in a decision by Judge Lamberth in the non-FOIA portion of the Abramoff case also issued at the same time as this FOIA case.

In a lengthy analysis, Judge Lamberth rejected the government's contention, and found that the records were indeed agency records and subject to the FOIA.  The government will now have to decided if it is going to search for and release the requested records or appeal the case to the United States Circuit Court of Appeals. 

The decision to appeal will be interesting as it will be the first major FOIA decision made since Michael Mukasey took over as Attorney General--an appointment that was largely approved by the Senate because Mukasey claimed he would restore independence to the Department of Justice.

Coming Soon: Top 5 FOIA Stories of 2007

Over the last two weeks of the year, I'll analyze the top 5 FOIA stories of the year.  So feel free to stop by and see where I rank them (unfortunately, Casey Kasem wasn't available to count them down).

FOIA Legislation Passes Senate

Rebecca Carr reports that the FOIA legislation recently re-introduced into the Senate was passed on Friday evening (Dec. 14).  FOIA amendments had previously been passed by the Senate but that version had run into problems in conference with the House version.  The House would now need to pass the Senate version for it to be sent to the White House.

I've been critical of this legislation in that it doesn't solve any of the budget problems that agency FOIA operations have, and that I feel are the real problem behind massive FOIA backlogs.  I will say the bill does have some positives to it, that should help the FOIA community.

However, I think a better bill could come about by waiting for the next Congress, which may very well have more members favorable to FOIA.  And last but not least, is the fact that the next President may also be more likely to agree to broader FOIA reforms than the current incumbent, who may in the end veto the Senate bill.