The Memphis Commercial Appeal has this story on its request to the FBI for records pertaining to FBI Informant Ernest Withers. I'm quoted in the story; my point being that investigations concerning civil rights activities in the 1960's such as the ones Withers informed on are different than run of the mill FBI investigations, especially in light of history. That being said, I believe the Court wants the Department of Justice to think about this point before treating this case as a normal FOIA litigation.
The Atlantic Wire's John Hudson has this story on the former Navy Seal's book on the mission to kill Osama Bin Laden -- I am just amazed that the publisher didn't insist on a prepublication review to make sure no classified material was released by the book.
Update (Fridaay 4:10 pm): Here's an update from John Hudson with a back and forth between the government and the attorney for the book's publisher.
The National Law Journal covered the hearing in the Memphis Commericial Appeal's case against the FBI for informant records pertaining to photographer Ernest Withers who released records have indicated was an FBI informant. According to the story, United States District Court Judge Amy Berman Jackson wants a top representative from the Department of Justice's Civil Division at the next scheduled hearing in the matter to discuss whether the records meet the law enforcemnt threshhold. In other words, was the investigation of Dr. Martin Luther King Jr. actually done for law enforcement purposes.
The answer to that has wide implications. If the records were not created for law enforcement purposes then none of the Exemption 7 subparts can be used to withhold any of the material in the King file. It is a serious issue and the remarks by Judge Berman Jackson indicate she is taking a long hard look at this, especially in light of the age of the documents and the fact that, in her opinion, the records do not impact any current law enforcement activities.
[Ed. note] I handled the administrative appeal in the case but am not involved in the litigation.
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The Blog of the Legal Times reports that the District of Columbia Court of Appeals has issued an opinion setting forth guidelines for when attorney fees may be granted in D.C. FOIA litigation. D.C. FOIA follows case precedent from the federal FOIA when there is no specific rulings on point in D.C. and that is largely what the court did in this instance.
The Navy has denied requester Theo Karantsalis's appeal of withholdings made on a 40 year old navy jet crash investigation pursuant to the deliberative process and the little used witness statement privilege of Exemption 5. The entire letter can be seen on Springyleaks.com.
The letter states that the Navy considered a discretionary disclosure but that somehow the release of these documents would compromise the current aircraft safety process. However, as the Navy's statement is conclusory and doesn't say exactly how the current aircraft safety process would be compromised it seems that this statement is merely boileplate and something the Navy has been told to include in its letters. If there really is a harm in releasing the information, the Navy (and other agencies) should state exactly what that harm is. I would suggest that Attorney General Holder revise his FOIA Guidlines to insist that agency articulate the harm to requesters.
The Huffington Post has this article on a FOIA request to the White House's Office of Administration for the recipe's of beer made by the White House staff. The interesting twist to this story is that in 2007, President George W. Bush decided that the White House Office of Administration would not respond to FOIA requests as it had previously done -- a decision upheld by a Court and continued under the Obama administration, despite calls to change the policy back. So, will the White House respond to this request or bury it under a legal decision?
The Washington Examiner has this on the paper's FOIA requests to six agencies seeking their responses to OMB on travel related matter. Five of the agencies processed the request, however the sixth agency, NASA said they couldn't understand what documents the Examiner sought.
Author Seth Rosenfeld writes about 1960's activist Richard Aoki in the San Fransisco Chronicle and explains how the FBI released information acknowledging that Aoki was considered an informant by the FBI. According to the article, Aoki was assigned the source symbol number T-2 in a released report. For those unfamiliar with FBI symbols, this means Aoki was considered a temporary source in that report. The article goes on to explain that the FBI had no comment on the matter as additional records about Aoki are the source of current litigation.
In an unrelated matter, the FBI recently lost a court fight to withhold infomant records on Ernest Withers, a photographer during the civil rights era. The FBI had released documents pursuant to a FOIA request that revealed that Withers was an FBI informant on Dr. Martin Luther King, Jr.
Blogger and author Bob McCarty made a FOIA request to the Army for an Army Handbook entitled "Inside the Wire Threat - Afghanistan." Mr. McCarty has publicized this request in his blog. The handbook was publicized by Gen. John Allen during Senate testimony in March of 2012. The request was eventually referred to the Department of Defense's FOIA Office ("DOD") because the Army believed that it contained Critical Infrastructure Security Information and that information was covered by 10 USC Section 130e, which was created in the 2012 National Defense Authorization Act. This was largely in response to the Milner decision which cut back the use of Exemption 2 for this material.
Under the statute, DOD gave McCarty the opportunity to show why the public interest in the material would outweigh any interests in withholding the material. Instead of responding to DOD, Mr. McCarty merely threw up his hands over the "hoops" he had to jump through and cancelled his request.
James Hogan, the DOD offical who asked Mr. McCarty for his input has stated to the FOIA blog that
"The National Defense Authorization Act (NDAA) for Fiscal Year 2012 created two DoD-specific Exemption 3 statutes – 10 U.S.C. § 130e, which concerns critical infrastructure security information, and 10 U.S. C. § 2254a, which concerns data files of the military flight operations quality assurance system. According to these statutes, the authority to exempt information from release to the public is provided to the Secretary of Defense, who may delegate this authority to the Director of Administration and Management. This authority has been delegated, and the DoD has published its procedures for exempting this information on the Defense Freedom of Information Policy Office web site here."
Hogan says they are trying to make the process as transparent as possible and asks for those interested to contact the Department with any comments.
This statutue and its input on the public interest in non-privacy information is relatively novel for the FOIA. All requesters who make requests should really give the DOD input on the information they are asking for under the terms of the statute, otherwise the DOD will be free to just withhold the information. Further, without requester input, no administrative appeals or litigation decisions will be available.