The FOIA blog

Court Finds FBI Confirmed Informant By FOIA Release

United States District Court Judge Amy Jackson Berman for the District of Columbia has ruled that the FBI has officially confirmed that photographer Ernest Withers was an FBI informant through its releases of information pursuant to a FOIA request on Withers.  The Blog of the Legal Times has more here including a copy of the opinion.

Reporter Marc Perrusquia made a request to the FBI for the records on Withers following his death.  Withers had been a photographer with access to the Martin Luther King Jr.  The FBI made an initial request of information that included a confidential informant number for Withers -- however the FBI refused to provide the informant file it maintained on Withers -- and continued to attempt to say that they had not confirmed that he was an informant [Ed. note -- I filed the appeal to the FBI for Perrusquia, but am not involved in the litigation].

The Court ruled that the c(2) exclusion is not appropriate in this case because the FBI has confirmed Withers as an informant.  The opinion is interesting in that the FBI changed its course on judicial oversight of exclusions in mid-course -- this is likely to be related to the 9th Circuit case in which the judge accused the FBI of lying to him over the existence of records and the plaintiffs were eventually granted sanctions.  According to this opinion, the FBI had originally stated that the Courts had no say over their use of exclusions, but have now changed that position and they will allow judicial oversight.

Regardless of the FBI's position on exclusions, the opinion finds that an exclusion doesn't apply because the FBI has confirmed that Withers was an informant and the FBI must know process the records they have on him as an informant and provide a Vaughn index for those records they won't release.  The FBI made a number of arguments as to why they didn't really confirm him as an informant but the Court took great pains to explain how, yes, the FBI did confirm it.  Humorously, one of the reasons given by the FBI was that the daughter of Mr. Withers does not believe he was an informant. 

The case now awaits further processing by the FBI as ordered by the Court.

Assassination Archives Seeks Release of 50.000 JFK Documents

The Assassination Archives and Research Center (AARC) has requested that the National Archives and the CIA release some 50,000 pages relating to President John F. Kennedy's assassination that remain withheld in full from the public, as well as an undisclosed number of partially deleted records.The letter details the JFK Act of 1992 and advises the Archivist and the CIA that after 50 years these documents should be released.  A copy of the letter can be found here: Download AARC Letter to National Archives (120120)

 

 

NY Times on FOIA delays

The New York Times has this report on a request it made in 1997 and just received a final response on.

While the story is interesting, I have to wonder why the Times didn't do more to get the request processed; in FOIA the squeaky wheel does get oiled -- be it a lawsuit or just regulary contacting the agency.  Further, why doesn't the Times (or any other newspaper) do an in depth story about how the FOIA costs money, FOIA Operations have to beg to be funded at even inadequate levels, and the current discussions about reducing the government debt are not, in any way, helping to make FOIA Operations funded at the proper levels. 

Government Files Reply Brief in Bin Laden Death Photo Litigation

The blog of the Legal Times has the government's reply brief in the Osama Bin Laden death photo's FOIA litigation. 

The government is saying that the records are classified and are properly withheld pursuant to FOIA exemptions 1 and 3.  Judicial Watch, the plaintiff, will file its reply (they cross-moved for summary judgment and get another opportunity to respond) next month.  Once that happens, the district court will issue an opinion.

Candidate Transparency: It's Probably Not Going To Get Better For FOIA

Fox News has this article on transparency; the summary of the article is if Romney or Gingrich wins, they won't even promise to increase government transparency and if Obama is re-elected he will talk a good game but things will be like they currently are.  There are some candid quotes in the article; especially from Thomas Fitton, the President of Judicial Watch. 

I really doubt that FOIA and open government are much of a campaign issue this year, especially since there is no money to really fund the initiatives that need to be done to improve FOIA Operations at the agency level.

Court Rules Privacy Act Exemptions Are Retroactive

Judge Richard Seeborg of the Federal District Court for the Northern District of California has ruled that regulations issued in 2010 by U.S. Customs and Border Protection are retroactive to FOIA/Privacy Act requests made prior to their issuance.  The issue came about in a lawsuit filed in Hasbrouk v. CBP.  A detailed accounting of the request, along with the order, can be found on Mr. Hasbrouk's blog, Papers, Please!

The Court also found that the personal identifiers used by CBP to retrieve information on travelers may be withheld pursuant to FOIA Exemption 7(E). 

Finally, the Court found CBP's search inadequate on certain items and ordered CBP to conduct additional searches for material responsive to the request.

Cert Denied in Mug Shot Case

The Supreme Court has denied cert in the eleventh circuit decision that allowed for the withholding of mug shots -- the Sixth Circuit currently requires that they be released.

VA Releases Information on Live Vets to Ancestry.Com

Military.com reports that the Veteran's Administration accidently released information on 2200 living veterans to Ancestry.com in 2011.  According to the story, the VA was only supposed to release information on deceased veterans -- however, information on living veterans was also accidently released.  Veterans who had their information released will be notified by the VA and provided certain services such as credit monitoring.

An investigation into the incident is ongoing -- hopefully this will not happen again as it does not help either the requester community (agencies will now tend to shy away from making releases where possible) or those who had their material released.

 

Justice to Hold Working Group Meeting on FOIA IT

On January 26, 2012, the Department of Justice will hold a working group meeting for all FOIA professionals that deal with IT issues.  More information can be found here.

As the world shifts from paper to a more electronic and digital environment, these initiatives are a helpful and worthy thing for the government to be sponsoring.

FBI and Responsive Records

Here's an article from Truthout about the FBI and its search for and determination of whether or not records are responsive to FOIA requests.  I'm not sure I agree with the entire article, but I do believe the FBI takes a wide leeway in stating that records are either not responsive to a FOIA request or that it can not determine whether or not records are responsive to a request.  I also think the FBI does not do this for sinister or political reasons but soley to keep the amount of records and requests it has to process down for administrative purposes.  [Ed. note -- I worked in the FBI's FOIPA Section from 1998-2002 but never dealt with or heard of the issue of "blackballing"}