The FOIA blog

More on DOJ Proposed FOIA Regs

Here's an editorial from the Washington Times on the New Proposed FOIA Regs.  I'll have much more to say about this over the next week -- what I will say is that it is apparent that many people -- on both sides of the political aisle have very little understanding on the use of FOIA exclusions, which is what the debate is about.  Of course, this debate actually occurred in 1986 when the FOIA amendments created the exclusions in the first place. 

Exclusion Uproar

The Department of Justice has extended the date for comments to its proposed FOIA regulations.  One area of comment receiving attention is its proposed response for DOJ components to give when it invokes a FOIA Exclusion -- in that case, the regulations state that the response by the component should "respond to the request as if the excluded records did not exist. This response should not differ in wording from any other response given by the component."

As the Daily Caller article discusses, there have been a number of comments about the proposed Exclusion regulation change.  For those unfamiliar with it, an exclusion is much different than one of the nine FOIA Exemptions and can only lawfully be used in certain limited instances.  It will be interesting to see what the final
regulation says.

ASAP Symposium and Workshop Speakers Announced

I am happy to announce that as the American Society for Access Professionals ("ASAP"), Symposium and Worshop Planning Committee Chair that the Honorable David S. Ferriero, Archivist of the United States will open the Symposium on December 7.  Following Mr. Ferriero, the Honorable Chief Judge Royce C. Lamberth will deliver the keynote address.

The Symposium takes place on December 7 and 8 at the National Archives in Washington, D.C.  More information on registration can be found here.  You should register now so that you can take advantage of the early bird pricing until October 28.

Holder Requests Changes In Federal Rules to Allow Release of Historical Grand Jury Material

According to the Blog of the Legal Times, Attorney General Eric Holder has requested that the Federal Judiciary change the Federal Rules of Criminal Procedure 6(e) to the disclosure of certain historical grand jury records after 30 years and to end Grand Jury secrecy for all records after 75 years.  Recently, the Department of Justice failed in its attempt to block the release of President Nixon's Grand Jury testimony concerning Watergate. 

This is a positive step in transparency and open government.

CIS Called Out on FOIA Processing Practices

A federal magistrate judge has agreed with requesters in the Northern District of California on a complaint against the United States Citizenship and Immigration Services ("CIS") pattern and practice of not responding to FOIA requests for information concerning requester's citizenship status in a timely fashion. 

The underlying issue concerns appeals of CIS decisions -- as there is no discovery, those seeking to file papers for citizenship or appeal denials must also file FOIA requests for the information held by the government.  Plaintiffs stated that CIS does not fulfill the requests in a timely manner as dictated by the FOIA statute, and thus individuals suffer a due process violation in the immigration hearings.  Plaintiffs filed the declarations of 26 other immigration attorneys who have suffered the same delays.  The Court agreed that the agency has a pattern and practice of failing to follow the FOIA and ordered it to process the requests of the requester in this case pursuant to the time dictated by the FOIA statute.

A copy of the case can be found here.

Administration Moving Ahead on Visitor Log Appeal

Politico reports that the administration is pushing ahead with its appeal of a lower court ruling that White House Visitor logs are Secret Service records and are thereby subject to the FOIA.  The Administration has been releasing the information pursuant to a settlement agreement made at the begining of the administration that resulted from a different lawsuit seeking visitor logs during the Bush Administration.

The question that the White House is seeking to have resolved is who do the records actually belong to.  Thus far, district court judges have sided with requesters saying that they are Secret Service records.  The last two administrations (Bush and Obama) have tried to say that they are White House records -- which would make them not subject to mandatory FOIA processing and disclosure.

OPM Releases Draft on FOIA Job Classification

The Office of Personnel Management (OPM) has released its draft "flysheet" for the Public Information Management Series, 0306.  This is the draft of the position classification for those employees who primarily work on FOIA matters.  Comments are due by October 31, 2011.

Mid-Week FOIA Updates -- DOJ & FDIC

According to Yahoo, the New York Times has sued the Department of Justice over its failure to release a portion of its interpretation of the Patriot Act.  The interpretation, referred to by Senators, has been classified by the Department of Justice.

JunketSleuth, a group that investigates government travel has this report on the FDIC's failure to respond to FOIA requests on employee travel even though similar requests to other agencies have been filled.

Federal Times on Administration's Transparency

Federal Times has this article about FOIA transparency under the current administration.  In summary, the article finds some agencies much more transparent than they were previously were -- others, not so much.  A companion editorial rips the Department of Homeland Security for their FOIA practices. 

According to the article, Steven Croley is supposed to be the administration's point man on FOIA policy.  Unfortunately, Mr. Croley doesn't seem to be prodding agencies to follow the President's wishes on FOIA.  As I have stated numerous times, it will take a White House advisor or Department of Justice Official with real power to make all agencies fall into the transparency line.  This hasn't happened yet -- and unfortunately, may not ever happen.

FOIA Litigation Up for FY 2010

The Blog of the Legal Times ("BLT") reports on the FOIA Project's study that finds FOIA litigation filings increased by 27% nationally for the Fiscal Year that ended on September 30, 2010.  The District Court for the District of Columbia, where the most FOIA lawsuits are filed, had a 20% increase.  The BLT states that the FOIA Project is continuing to study the data to try to find out why the increase took place.