The FOIA blog

Fox Business News Loses FOIA Case

According to Reuters, Fox Business News has lost its FOIA case for details from the Federal Reserve's Board of Governors about the central bank's loans to companies affected by the financial crisis.  Judge Alvin Hellerstein of the United States Court for the Southern District of New York ruled that most of the responsive material was subject to exemption 4 of the FOIA and also that the search for responsive documents was reasonable. 

Fox has indicated that they will likely appeal the rule.  I think the appeal will be interesting as Fox will need to find a way to challenge the government's arguments as to the harm  done by the release of this information.

Update:  Here's the decision thanks to Access Reports.  If you want in depth discussions of FOIA cases and other disclosure activities, you should get a subscription to Access Reports.  Download FBCvFedReserve  

Further update:  Fox has appealed the decision.

IRS Loses Attorney Fee Case

The Internal Revenue Service ("IRS") has lost an attorney fee decision under the new attorney fee provisions of the 2007 Amendments to the FOIA.  The case comes from the Eastern District of Arkansas and was brought by Neil Dieninger of the law firm of Dieninger and Wingfield seeking materials disseminated to Arkansas IRS employees at a 2007 training in Tulsa, Oklahoma. 

The IRS kicked the request around like a hot potato for months, disclosure offices throughout the country tried to get other offices to take responsibility for the request.  Eventually the plaintiff got tired of waiting and filed suit.  After the complaint was filed over a thousand pages of material were released and the only issue before the court was whether the plaintiff was entitled to attorney fees in this matter.

The court found that the plaintiff was entitled to and eligible for attorney fees under the new FOIA attorney fee provisions because the filing of the complaint prompted the release of the documents.  Under the old standard, plaintiff would have probably needed a court order in his favor before attorney fees could be granted by the court.  

Another interesting point in the case was that Dieninger brought the suit in his name and also his law firm.  The IRS argued that a law firm couldn't receive fees for a suit brought by itself.  However, the IRS had admitted the paragraph in the complaint that said that Dieninger was bringing the suit on the law firm's behalf, thereby defeating their own later argument.  This of course is a good primer for attorneys in responding to complaints as you'll never know what statements that really seem harmless at one point can hurt later on. 

The case can be found here: Download Attorney fee award

FOIA Fellowship Available

CASA de Maryland, Maryland's largest immigrant organizing and services organization, is interested in a fellowship that will focus on FOIA and Maryland Public Information Act work.  For more information on this organization and its opportunities, see this attachment:

Download CASA de Maryland Inc Fellowship Interest Overview July 2009[1]

Marines Lose on Selection Board Master Brief Sheets

The United States Marine Corps has been told by U.S. Federal District Court Judge for the District of Columbia Gladys Kessler that it must release Master Brief Sheets used in its Selection Board Proceedings.  The Marine Corps had tried to withhold the material pursuant to FOIA exemptions 3, 5, and 6 but lost on all three exemption claims.

Judge Kessler found that 10 U.S.C. Section 618(f) was indeed an exemption 3 statute that covered Marine Selection Board Proceedings.  However, the Master Brief Sheets did not, according to the Court, fall within the government's own definition of a proceeding--the sheets are merely a tool used by a selection board during the proceeding.  Thus, exemption 3 did not protect the material.

The Marines next tried to block release pursuant to the deliberative process privilege of exemption 5.  However, the Court found the Master Brief Sheets were not deliberative.  The Court also found that the "Sampled" Master Brief Sheets (sheets specifically chosen by the Marine Corps) also were not deliberative or pre-decisional.  Therefore, exemption 5 did not protect the material from disclosure.

Finally, the Marines made an assault on disclosure by claiming that the material was protected pursuant to the personal privacy exemption 6.  However, as the plaintiff specifically said he did not want personal identifying information the Court found that the government had not established that the release of the redacted material would be a "clearly unwarranted invasion of privacy," and exemption 6 did not apply. 

Go Under the Hood of A FOIA Request

The letter and subsequent discussion in the drugmonkey blog at Scienceblogs.com really takes you inside a FOIA request from the submitter's point of view.  I think the discussion is very instructive to how certain people think about FOIA in the scientific community.

Remember, We're on Facebook

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Obama Administration Releases Health Care Visitor Logs

The Obama Administration has released the Health Care visitor logs In response to the the just filed lawsuit by Citizens for Responsibility and Ethics in Washington ("CREW") for the records. The Obama Administration made the release last evening and claims to be continuing to evaluate the policy in other lawsuits brought by CREW and other groups.  [Ed. note--I do legal work for CREW but am not involved in this matter.]

My Take On the DOJ Argument To Withhold Cheney Interview

Stuck in a time warp, the Department of Justice has made its arguments for withholding the FBI's interview of former Vice President Richard Cheney before United States District Court Judge Emmet Sullivan.  Politico has the details here.

Citizens for Responsibility and Ethics in Washington is seeking the document [ed. note-- I do work for CREW but have not worked on this matter].  The government has stated that Cheney did not ask for confidentiality when interviewed, meaning exemption 7(D) of the FOIA doesn't apply.  The government's argument today, that they should be able to wait five to ten years to release this type of information is basically the executive branch trying to write and implement legislation before the judicial branch. 

My take on their argument is that the material should be released and executive branch people who now or will work in the government in the future should act ethically; they will then have no problem with being interviewed or having any interview of themselves being released because they would have done nothing wrong.  Maybe I live in a world populated by Frank Capra idealism but that is the government we should be aiming for, not the lesser standard argued for by the Department of Justice.

Update on Jefferson Morley's Lawsuit Against the CIA

Journalist Jefferson Morley is pushing on with his FOIA lawsuit against the CIA for records about George Joannides, the deceased CIA Officer whose records he seeks.  He recently filed a declaration with his refutions of the affidavit filed by the CIA's Chief Information Officer Delores Nelson.

Morley's latest write-up on his lawsuit can be found here, and the declaration can be downloaded here:  Download Sixthmorelydeclaration

The FOIA Blog on Facebook

For all of you on Facebook, you can now become a fan of the FOIA blog!  The Facebook fan page will have short status updates and reminders on various FOIA matters and discussion on FOIA topics.  The page can be found by searching for thefoiablog.typepad.com.