The FBI has lost in its bid to dismiss a suit where the plaintiff, Eugene A. Fischer, failed to file an administrative appeal of its recent decision withholding responsive records. The plaintiff first filed a request to the FBI in 1995, and it was withheld pursuant to FOIA Exemption 7(A). The plaintiff promptly appealed. The Department of Justice then affirmed the appeal.
Ten years later, the Department of Justice re-adjudicated the appeal and, this time agreed with Fischer that Exemption 7(A) was not proper. The request was remanded back to the FBI. The FBI released certain documents but invoked other exemptions and told plaintiff he could again appeal the withholding. Instead, plaintiff sued and the FBI moved to dismiss--raising in its reply brief a failure to exhaust administrative remedies.
United States District Court Judge for the District of Columbia, Ellen Segal Huvelle disagreed with the FBI's motion, saying the plaintiff's earlier appeal and subsequent decision by OIP was enough to exhaust his administrative remedies. Judge Huvelle ordered the FBI to produce a vaughn index of its withholdings by July 14, 2008.
Ten years is a long time to wait on an administrative appeal, and I believe Mr. Fischer showed great restraint in not filing suit sooner. Hopefully, the FBI will produce a vaughn index that is sufficient to allow Mr. Fischer to see why the FBI has worked so hard for 13 years to withhold records from him.
As part of an ongoing FOIA lawsuit with the ACLU, the CIA has turned over documents relating to waterboarding. According to this story, the documents are heavily redacted and the ACLU will press on with its litigation.
According to this AP story, Judicial Watch was dealt a setback in its attempt to get records pertaining to Hillary Clinton's time as first lady. United States District Court Judge James Robertson granted the National Archives and Records Administration a one year stay in the lawsuit so that it could complete processing the records. Judicial Watch sought a much faster processing schedule.
I haven't read the opinion, so I can't offer any further analysis on it.
The Department of Justice's Office of Information and Privacy will hold a conference on May 28, 2008 to tell agencies what they need to put in their annual FOIA reports to Congress.
Rather than worrying about what goes into the final report, I wish OIP would worry more about what happens day to day at FOIA operations in the agencies. If the energy went into reducing backlog and properly reducing records, there would be little worry about the reports to Congress.
The White House has unveiled an Executive Order that gives the certain material the designation as "Controlled Unclassified Information." What this means for FOIA purposes is...basically nothing. Only properly classified information can be withheld pursuant to FOIA Exemption 1. Information with the new designation would still need the prequisites of the other eight exemptions to be withheld under one of them. The only thing the designation does is give the heads up to FOIA employees that someone in an agency deems this material important and likely would like them to find away not to release it.
As regular readers of the blog may recall, I'm counsel on a FOIA lawsuit agains the State Department for access to certain records pertaining to activities of that agency and the Cultural Property Advisory Committee. One of the plaintiffs, the Ancient Coin Collectors Guild, in this action has released this statement concerning the State Department's recent release of documents.
Today, bloggers everywhere are uniting, and hopefully posting messages about basic human rights.
Countries with transparent and open governments also are the ones with the least basic human right issues. The FOIA and other acts like it allow focus to be put on "what the government is doing." Countries, such as Burma, where there is no government transparency are able to easily take away human rights because there is no way for its citizens to know just what the government is up to. Today, I urge all countries to uphold basic human rights and enact freedom of information act laws.