The Supreme Court has found that the requirement that requests made under the State of Virginia FOIA may only be made by citizens of the State is constitutional. It is unclear if this finding applies to all states that have the requirement as the discussion of the constitutionality of the law was specific only to the Virginia law but cert was taken because the Delaware law had previously been found unconstitutional by the Third Circuit.
Last week the Department of Justice posted the Exemption 7(E) Section of its FOIA Guide. This is the second section of the guide published as the Exemption 2 Section was released in early March. This is the first update of the Guide since its last publication in 2009.
The National Law Review has this article from attorneys t Beveridge and Diamond on the recent Court of Appeals for the D.C. Circuit decision on agencies obligation to provide substantial responses before administration appeals requirements begin.
The Hill has ran this editorial from Rep. Bob Gibbs (R-Oh) about the EPA's release of some personal information (address, phone numbers and email addresses) of farmers in response to a FOIA request. According to Gibbs, this release could lead the farmers "at risk to possble vigilantes" and he demands that the EPA conduct an investigation and hold these employees accountable.
While too much information was likely released, it is unlikely that there are "vigilantes" roaming rural America. If Gibbs has information of such threats he should report them to law enforcement. Further, if Gibbs is truly concerned about the adequacy of FOIA employees he should take steps to make sure FOIA Operations are fully staffed and funded so that FOIA employees are given the proper oversight and training needed to do their jobs successfully.
Techdirt.com has this article about two FOIA requests that took six and eleven years respectively to process by different agencies of the government. Even with requirements that agencies publish their oldest requests, requests still get delayed for various reasons. The fear is that with cuts to FOIA agency budgets due to indifference and sequestration, more examples of these lengthy delays will continue into the future.
The Examiner reports on the EPA's attempts to improve its performance in transparency, including FOIA. The Acting EPA Administrator has circulated an agency wide memo requiring training for agency employees in records management and FOIA.
If there are any EPA employees reading this (or anyone else for that matter), the American Society of Access Professionals (ASAP) has upcoming comprehensive FOIA and Records Management Training in May. More information on the training can be found here.
Infoshop News has this piece that describes documents received from a FOIA request about Occupy Wall Street. According to the Article, the Department of Homeland Security was worried about the media coverage it received during the Occupy Wall Street movement.
The United States Court of Appeals for the District of Columbia Circuit has issued a major FOIA decision in CREW v. FEC. [ed. note - I do legal work for CREW but was not involved in this decision].
The decision decides what constitutes a FOIA determination and that decision is adverse to the one espoused by the government. Basically, a determination requires the agency to actually advise a requester what is specifically going to do -- i.e release documents fully, release with specific exemptions and it is not enough for an agency to say we are going to process and release the records.
Hopefully, the Attorney General and his staff will make note that those under his command espoused a position directly in conflict with policy guidance he and President Obama set forth four years ago and deal with it accordingly.
One of FOIA Requesters biggest complaint is the time it takes for an agency to process the request. Often, requests will go into litigation and if a timetable for the agency to process is not worked out between the parties, the government will seek a stay of the case to allow it to process the records. A number of factors will be weighed by te agency in seeking the amount of time it requests to process the records. The agency will then file a declaration seeking the court's permission for the delay -- this is called an Open America declaration. Rather than bore you with a synopsis of where that came from, suffice it to say an agency must show that its backlog causing the delay was unexpected and that its making progress in reducing the backlog.
In a recent case, the FBI asked for a stay of 29 months to finish processing. United States District Court Colleen Kollar-Kotelly had other ideas, finding that the FBI failed to meet the requirements that would allow it to get a full Open America Stay and ordered the FBI to finish processing the documents all non-classified records in the request by August 1, 2013.
There are other similar cases pending in the District Court and it will be interesting to see if this decision affects the outcomes of those cases.