The FOIA blog

The FOIA Blog Birthday Post

The FOIA Blog is two years old today.  On August 29, 2008, I made my first post introducing the blog and have been adding items about the FOIA (and other public records laws) ever since.

I'd like to thank all my readers for their support--be it checking in for time to time, commenting on articles I've written or passing along things of interest.  I'm happy to say that the blog readership continues to grow even as other blogs about disclosure issues have been introduced. 

I've had comments pro and con about the recent look of the blog.  Some of you are fans of the old look, some of the new look.  Maybe I'll have a third look in the future.

The most interesting thing about blogging is what brings in readers.  Many of you are interested in disclosure issues and once you've found the FOIA Blog, you read it with regularity.  However, some readers find the blog because the articles have something to do with a non-FOIA subject.  For instance, I would say that the most read articles over the past two years are those dealing with Wesley Snipes, Siegfried and Roy, and UFO's.  I can only conclude that the FOIA Blog is much like the rest of the country's media content--hard news is there but Brittany and Brangelina is what people seem to be more interested in.

This next year promises to be interesting.  Court cases are moving along and constantly being filed.  Legislation is pending--and after November, there will be a new congress and a new president, which will have consequences I can't even guess at this time. 

If you are new to the blog, feel free to look around and let me know if you have any comments.  When I'm not blogging, I am practicing FOIA law in the Washington D.C. area--for more on my law practice you can visit infoprivacylaw.com.

Court Orders Release of Rosenberg Grand Jury Material

United States District Court for the Southern District of New York Alvin K. Hellerstein has ordered the release of grand jury testimony of a number of individuals from the Ethel and Julius Rosenberg case.  The information is over fifty years old.  The government has two months to appeal if it so chooses.

The reason the plaintiffs had to go to court to get this information released because grand jury testimony is always withheld pursuant to FOIA exemption 3, which invokes Federal Rule of Criminal Procedure 6(e). 

FBI Wins Adequcy of Search Case

The FBI has won its argument that it conducted an adequate search in response to a request by SAE Productions concerning FBI interactions with the Muslim community.  Judge James Robertson of the District Court for the District of Columbia has ruled that the search conducted by the FBI--a search that discovered a number of responsive documents--was adequate.  The plaintiff had argued that it was not and set forth a number of reasons why; however the court did not agreed and granted summary judgment for the FBI. 

PCAOB Ruled Constitutional

By a 2-1 vote, the United States Courts of Appeals for the District of Columbia has ruledthat the Public Company Accounting Oversight Board ("PCAOB") is constitutional.  The PCAOB is a result of Sarbanes-Oxley and oversees public accounting firms. 

The problem I have with the PCAOB, and I've stated it consistently here and in my articles in LLRX.com, is that while it has governmental authority, it is not subject to the FOIA.  I continue to suggest that Congress fix this problem and make the PCAOB subject to FOIA--after all one of the reasons Sarbanes-Oxley was passed was to put some sunshine in the financial sector so shouldn't there be sunshine on the regulation of accounting firms?

Ninth Circuit Rules Against IRS

The Ninth Circuit Court of Appeals has ruledagainst the IRS on an appeal brought by Pacific Fisheries.  Pacific Fisheries had filed a FOIA request for documents regarding summonses that were later found to be defective.  The IRS asserted that exemption 3 (IRC section 6103) allowed them to withhold the documents.

On the day dispositive motions were due to be filed in district court, the IRS released 313 of 465 documents in full or in part and asserted exemptions 3 and 5 to withhold the remaining material.

The district court granted summary judgment for the IRS but told the IRS it should show cause why sanctions shouldn't apply for its releasing most of the responsive documents on the day dispositive motions were due.  Sanctions were ultimately not awarded as the parties reached an agreement on attorneys fees to be paid Pacific Fisheries.  Pacific Fisheries then appealed the substantive order.

The Ninth Circuit held that Pacific Fisheries did not waive its argument on the b3 exemption by bringing it up initially in its reply brief.  The issue was remanded to the district court for a full briefing of the issues.  Further, the court remanded the issue of exemption 5 deliberative process segragability to the district court.  The district court had placed the burden on the plaintiff, not the government, and the circuit court disallowed this and remanded it for further findings.

DOJ Summary of FOIA Annual Reports

There isn't much going on in the FOIA world.  It's August in Washington during an election year and  Congress is out of session. 

I overlooked this from last month.  The Department of Justice has summarized FOIA annual reports for FY 2007.  It's an interesting read.  Needless to say, there is still room for improvement.

Expanding the FOIA

My latest article is up at llrx.com.  In it I address who I think should be subject to the FOIA that currently isn't.

I'm Seeking a Copy of the FOIA/Privacy Act Source Book--Assistance Wanted

I'm looking for a copy of the FOIA/Privacy Act Source Book.  It's a compendium of the legislative history for the FOIA and PA and has been cited by courts.  Copies of the Government Printing Office appear to be out of print.  Additionally, one part is online at the Library of Congress, but I need to find a hard copy of the entire thing.  Further, there may be two volumes entitled Source Book 1 and Source Book 2.

If anyone knows how to gain access to a copy of this book, feel free to either leave a comment here or if you wish to remain anonymous you can email me privately.

Increase in State Open Records Blogs Noted

Once in awhile I blog about State Open Records matters.  However, since I started this blog almost two years ago, I've noticed that others have covered the state matters in depth.  And I'm not alone.  Leslie Graves has also noticed this trend.

Court Rules Government FOIA Referrals Improper

In a procedurally rare case, Magistrate Judge for the District Court for the District of Columbia Alan Kay has ruled that the United States Secret Service's ("Secret Service") referral of documents to other agencies, especially the Executive Office for United States Attorneys ("EOUSA") was improper and should not have led to a grant of summary judgment for the government.

The case was on remand from the United States Court of Appeals for the District of Columbia Circuit. The D.C. Circuit had remanded the case following the plaintiff's appeal for a "statement of reasons for the grant of summary judgment with regard to the documents referred by the appellee to other agencies for processing under the FOIA."  Magistrate Judge Kay then reviewed each of the Secret Service's referral, found some of them to be proper pursuant to FOIA law, and found others to be improper.  All of the ones he found improper, with the exception of the EOUSA, were found to be remedied by the fact that the documents had eventually been released or withheld under acceptable FOIA exemptions.

With regard to the EOUSA, Magistrate Judge Kay found that the EOUSA's statement that documents responsive to the request but referred to it would not be released without a new request to be without any support and therefore improper.  Additionally, the EOUSA failed to adequately explain why it withheld certain other records.  However, due to the language of the Circuit Court remand, Magistrate Judge Kay said he was without jurisdiction to order the documents released in the confines of this order.