Six non-profit groups have filed a Amici Curiae brief on behalf of the government's position in FCC v. ATT, which is now before the U.S. Supreme Court. The case comes from a Third Circuit Court of Appeals decision which found that corporations have privacy rights under FOIA exemption 7(C). Historically, exemption 7(C) privacy rights have only been extended to humans.
I'm neither a tax lawyer nor a health care lawyer, so bear with me as I try to explain this one.
The Affordable Care Act of 2010 added the qualifying therapeutic discovery project program under Section 48D of the Internal Revenue Code. The IRS has now posted its notice as to how eligible taxpayers may apply for certification from the IRS of a qualified investment with respect to a qualifying therapeutic discovery project as eligible for a credit, or for certain taxpayers, a grant under the program.
The FOIA angle comes in at Section 10 of the Notice. The IRS explains that certain material must be disclosed pursuant to the law (and also includes the IRS belief that it will be withholding other material pursuant to FOIA exemptions 3 and 4). The Notice provides an address for FOIA requests for this information.
The American Small Business League has won another lawsuit against the government; this time it's against the Department Energy for the names of those employees overseeing a contract given to Bechtel.
Update: Commenter JW asks how the DOE has lost this lawsuit. I'm not sure, so I've changed the title of the post. It appears that the DOE made a release of documents to the plaintiff's since the time of the filing, but again I'm not sure. The plaintiff's do now appear to have the names of individuals they requested.
Business Week reports that the Food and Drug Administration has proposed to change its policies to allow the agency to release certain information, including rejected drugs to the public. This is a proposal of the agencies Transparency task force, created at the urging of the Obama administration in June of 2009. The proposed policy is now in a 60 day comment period.
Processing FOIA requests can be complex. One way to simplify processing is to have black and white rules about what can and cannot be released.
I propose time limits on deliberative materials. For example, documents can no longer be withheld after ten years even if they contain material that is arguably withholdable under the deliberative process privilege.
Additionally, how about making the FBI's 100 year rule the standard across the board. The FBI routinely releases the identities of individual's 100 years after their date of birth, regardless of whether or not they can find a death notice. I propose making this a rule for every agency.
Now it's your turn, anymore black and white rules that can speed up processing of FOIA requests?
Author William Cohan has written this editorial in the NY Times on the SEC's FOIA Program. I've had similar experiences with this office and find it ironic that while the SEC is now preaching "transparency" for the companies it oversees, it has no idea what transparency really is.
If I was Mary Schapiro, I'd clean house in the FOIA Program and the General Counsel's Office that oversees it. I'd also make sure that the Department of Justice was litigating cases on my behalf and I'd issue a memorandum in the spirit of President Obama and Attorney General Holder stressing the need for open government and disclosures.
The Department of Justice has published a list of statutes that courts have found to be Exemption 3 Statutes.
Please note that just because a court has found it to be an Exemption 3 statute, it may still be challenged. As an example, I give you 19 U.S.C. Sections 2605(h) and (i) (Convention on Cultural Property Implementation Act), which I am currently challenging in the D.C. Court of Appeals on behalf of my clients.