The FOIA blog

Here is more on the decision of the D.C. Circuit on the ACLU v. DOJ issued this week:

A release from the ACLU is here, Reporters Committee for Freedom of the Press had this to say, and finally the HIll weighs in here.

SEC Destructo-Gate 9/7/11

Here's today's update on the SEC's alleged destruction of records from the Washington Post.

DOJ Loses Practical Obscurity Argument

The United States Court of Appeals for the District of Columbia has issued an interesting decision on Exemption 7(C) and the idea of practical obscurity that has been around since the Supreme Court's decision in U.S. Dep't of Justice v. Reporter's Comm. for Freedom of the Press over twenty years ago.

This case concerns the ACLU's request for cases in which warrantless cell phone information was used by the Department of Justice in criminal cases.  The district court had found that a balancing test under Exemption 7(C) found a public interest outweighing the privacy interests of those convicted of crimes.  The D.C. Circuit agreed and found that the requested information was not practically obscure.  Even more interesting was the court's discussion of how the judicial system's PACER system and the internet has changed the way material can be located -- making certain items much less obscure.

The case has been remanded to the district court for further proceedings. 

More on SEC Destructo-Gate

The Washington Post has more on the SEC's alleged destruction of records.  And for those wondering what this has to do with FOIA, if the record are destroyed they can not be retrieved and released per the FOIA.  Additionally, the story states that the SEC's FOIA Office seems to have weighed in on the matter.

More on SEC Destructo-Gate

The Washington Post has more on the SEC's alleged destruction of records.  And for those wondering what this has to do with FOIA, if the record are destroyed they can not be retrieved and released per the FOIA.  Additionally, the story states that the SEC's FOIA Office seems to have weighed in on the matter.

Washington Post On SEC Records Destruction -- I'm Quoted

The Washington Post has this on the Securities and Exchange Commission's (SEC) destruction of records of preliminary investigation as soon as they find that a full investigation are not needed.  The story looks at other law enforcement agencies and finds that they keep them from as little as three years to as long as forever.  I am quoted in the story.

The SEC seems to always be up to something when it comes to record issues be it record keeping or access to records.  Last year, they were able to insert language into the financial reform law that gave them a broad statutory exemption for their records.  Once it was uncovered, Congress removed language from the bill.  Congress really needs to have a hearing on who at the SEC is advising the agency on these types of issues and determine if a personnel change is needed.

Update:  An unknown commenter known as Exemption 10 points out what he or she considers inaccurate comments I make above.  It would be nice to know who Exemption 10 is.  Anyway, I feel it is important to point out a few matters.  First, this is my blog and under the First Amendment I can pretty much write my opinion -- unless I libel or defame someone.  Second, while Exemption 10 is correct that Congress passes the laws and Congressman should read the laws they are passing, it is pretty much standard operating procedure that reading every word of every bill before it passes just doesn't happen (I'm not debating whether its right or wrong, it just doesn't happen).  Even if it does happen, it is unlikely that most people in Congress (and the world at large for that matter understand FOIA-speak).  So what the SEC was able to do in 2010 was, with the assistance of some in Congress, was insert language that was very friendly to the agency.  In the rush to get the bill through, it went unnoticed until later when it was repealed -- again Exemption 10 -- that is my opinion.  Finally, Exemption 10 tells my readers that I litigate against agencies.  That is indeed true.  But, I also work with agencies and FOIA personnel  on a number of matters, in litigation, in administrative matters and on issues involved in strengthening the FOIA.  In my previous life I worked in FOIA in the government and have made many friendships with people working in the FOIA world.