The Supreme Court has granted cert to Milner v. Department of the Navy, which involves a FOIA decision by the Ninth Circuit Court of Appeals and FOIA exemption 2. Milner sought information about the distance at which Naval munitions stored at a base on an island off the coast of Washington would be liable to explode. The Navy invoked exemption 2 and both the District Court and Ninth Circuit Court of Appeals approved the exemption to withhold the material.
The question presented on this case per the Supreme Court filing of Milner is "whether 5 U.S.C. § 552(b)(2), which allows a government agency to keep secret only documents related solely to the internal personnel rules and practices of an agency, must be strictly construed to preclude the "High 2" expansion created by some circuits but rejected by others."
The Supreme Court has ruled that the disclosure of the names of signers of petitions does not violate the First Amendment of the Constitution. However, the Court left it an open question if, in individual instances there would be situations when the names could be withheld.
The FOIA ramifications, aside from the view that the names may be released, is that the writings of the justices here (including the dissents and concurrences) offer clues as to how they feel about transparency and the privacy of third parties. The next FOIA matter that may come before the Court is the ATT v. FCC case which deals with the question of whether or not corporations have privacy (or if the public interest outweighs any such privacy and compels disclosure of corporate information).
According to the Washington Post, Peter Nickles, the General Counsel for the District of Columbia has asked the D.C. Council to give the District an unspecified time limit in which to address FOIA requests DC considers to be burdensome.
Currently, the District allows 15 days to respond to a FOIA request, with a 10 day extension. Nickles wants to increase this time period--but he won't say by how much or even if it should be a specific time.
I believe, in certain instances, 25 days may be too short of a time period. However, there needs to be a date certain for the requests to be finished by so that litigation may be triggered. While I am not advocating litigation in all cases, many times it is the only way to get the government's attention. Further, there needs to be strict rules in place when the longer deadline can be invoked--and some type of review process to make sure it is not being misused.
The AP has this analysis of Supreme Court Justice nominee Elena Kagan's arguments on behalf of government secrecy while the Solicitor General. My take is that while I wish she had been a stronger proponent of transparency while the Solicitor General, these are positions she took as the government's attorney, and was likely pressured by bureaucrats to take these positions. It is unclear how she will actually vote on transparency issues as a Justice.
The Deseret News reports that Rep. Jason Chaffetz (R-Ut) has introduced a bill that would specifically make Fannie Mae and Freddy Mac subject to the FOIA. Currently the two home loan giants are under government conservatorship--which leaves the question of whether their records are now subject to FOIA open to interpretation (they would say no, others, including myself would say yes).
The Chaffetz bill has a number of GOP co-sponsors. Hopefully a disclosure orientated Democrat will co-sponser the bill and get this one moving. After all, the public has a right to know what is going on with its money.
has been published. Blog readers will realize its a version of earlier blog posts concerning ideas for improving the FOIA and my argument that a law creating a commission isn't something that is needed.
As always, please publish your ideas on improving the FOIA!
Al.com's Sean Reilly quotes me in his story about a lawsuit I have brought on behalf of my client, John Aaron, in his attempt to get records from the Executive Office of United States Attorneys concerning Leura Canary, the U.S. Attorney for the Middle District of Alabama and her recusal from the Don Siegelman prosecution that took place a few years ago.