The FOIA blog

Agency Ignores FOIA Case Law and DOJ Guidance-Friday Rant

I have been informed that the SEC is blatantly ignoring FOIA Case Law and DOJ Guidance on basic requests for information; namely a requester sought copies of the SEC's internal news clips for a specific time period.  Rather than simply processing and releasing the material, the SEC cited exemption 3 to block the release and cited the Copyright act as the statute allowing it to use Exemption 3.

The problem, of course is that DOJ guidance and case law specifically say that the Copyright act is not an Exemption 3 statute and the material should be released.  So, instead of just answering a FOIA request properly, the SEC has blocked transparency on a minor matter. 

The fact that an agency can misinterpret and/or ignore FOIA guidance and case law is just frustrating to requesters.  And in the bigger picture it shows just how easy it probably was for Bernie Madoff to get away with it for all those years. 

Exemption 3 Status Proposed for Terror Watch List Data

According to the Washington Post, proposals in Congress would make Terror Watch List Data automatically exempt by statute under the FOIA.  This would make any requests for this material exempt pursuant to Exemption 3 of the FOIA.

I think there are a couple of problems with this proposal.  First, the material can already be withheld pursuant to a number of existing FOIA exemptions so the added legislation doesn't really change how the material is handled (it is now routinely withheld under those exemptions).  Secondly, and what I find troubling, is that this material--which is disseminated nationwide to law enforcement agencies--is often wrong.  I'd rather see Congress work on mechanisms to fix this problem first rather than put a fix to a problem that really doesn't exist in the first place.

Marines Lose on Selection Board Master Brief Sheets

The United States Marine Corps has been told by U.S. Federal District Court Judge for the District of Columbia Gladys Kessler that it must release Master Brief Sheets used in its Selection Board Proceedings.  The Marine Corps had tried to withhold the material pursuant to FOIA exemptions 3, 5, and 6 but lost on all three exemption claims.

Judge Kessler found that 10 U.S.C. Section 618(f) was indeed an exemption 3 statute that covered Marine Selection Board Proceedings.  However, the Master Brief Sheets did not, according to the Court, fall within the government's own definition of a proceeding--the sheets are merely a tool used by a selection board during the proceeding.  Thus, exemption 3 did not protect the material.

The Marines next tried to block release pursuant to the deliberative process privilege of exemption 5.  However, the Court found the Master Brief Sheets were not deliberative.  The Court also found that the "Sampled" Master Brief Sheets (sheets specifically chosen by the Marine Corps) also were not deliberative or pre-decisional.  Therefore, exemption 5 did not protect the material from disclosure.

Finally, the Marines made an assault on disclosure by claiming that the material was protected pursuant to the personal privacy exemption 6.  However, as the plaintiff specifically said he did not want personal identifying information the Court found that the government had not established that the release of the redacted material would be a "clearly unwarranted invasion of privacy," and exemption 6 did not apply. 

Court Orders Release of Rosenberg Grand Jury Material

United States District Court for the Southern District of New York Alvin K. Hellerstein has ordered the release of grand jury testimony of a number of individuals from the Ethel and Julius Rosenberg case.  The information is over fifty years old.  The government has two months to appeal if it so chooses.

The reason the plaintiffs had to go to court to get this information released because grand jury testimony is always withheld pursuant to FOIA exemption 3, which invokes Federal Rule of Criminal Procedure 6(e). 

Ninth Circuit Rules Against IRS

The Ninth Circuit Court of Appeals has ruledagainst the IRS on an appeal brought by Pacific Fisheries.  Pacific Fisheries had filed a FOIA request for documents regarding summonses that were later found to be defective.  The IRS asserted that exemption 3 (IRC section 6103) allowed them to withhold the documents.

On the day dispositive motions were due to be filed in district court, the IRS released 313 of 465 documents in full or in part and asserted exemptions 3 and 5 to withhold the remaining material.

The district court granted summary judgment for the IRS but told the IRS it should show cause why sanctions shouldn't apply for its releasing most of the responsive documents on the day dispositive motions were due.  Sanctions were ultimately not awarded as the parties reached an agreement on attorneys fees to be paid Pacific Fisheries.  Pacific Fisheries then appealed the substantive order.

The Ninth Circuit held that Pacific Fisheries did not waive its argument on the b3 exemption by bringing it up initially in its reply brief.  The issue was remanded to the district court for a full briefing of the issues.  Further, the court remanded the issue of exemption 5 deliberative process segragability to the district court.  The district court had placed the burden on the plaintiff, not the government, and the circuit court disallowed this and remanded it for further findings.

Appeals Court Determines That TREAD Act Is Not An Exemption 3 Statute

The United States Court of Appeals for the D.C. Circuit has ruledthat the Transportation Recall Enhancement, Accountability and Documentation ("TREAD") Act, Pub. L. No. 106-414, 114 Stat. 1800 (2000) is not an Exemption 3 Statute under the FOIA.

Aside from the decision in this case, the procedural aspect of this litigation is fairly interesting in that it doesn't involve a FOIA request.  In promulgating regulations under the TREAD act, The Department of Transportation set forth proposed regulations finding that some information provided by tire manufactures was protectible by Exemption 4 of the FOIA, but not Exemption 3.  The Rubber Manufacturers Association ("RMA") argued that the information was covered by both Exemption 3 and 4.  Public Citizen argued that it was neither.  Public Citizen filed suit in district court over the regulations, RMA intervened, and the district court eventually came up with the same answer that the Transportation Department had arrived at (yes to 4, no to 3).

The appeals court affirmed the district court decision with a detailed description of why this statute is not an Exemption 3 statute.  Another interesting aspect of this case saw Public Citizen and the government arguing the same side (no to 3), with the RMA (and its attorney Eugene Scalia) arguing for the Exemption.  It is very rare for the government to argue that information is not covered by an Exemption 3 statute (even though many requesters would like to see it happen more often). 

 

Exemption 3 Transparency Legislation Introduced

Senators Patrick Leahy (D-VT) and John Cornyn (R-Tx) have introduced legislation aimed at making legislation more transparent when new Exemption 3 statutes are created.  This proposal was in last year's FOIA amendments passed by the Senate but was stripped out in the House version of the bill.  Sen. Leahy's press release can be found here.

Of course, and I know I sound like a broken record, but there is no mention of adequately funding FOIA Offices anywhere in Sen. Leahy's press release.

Postal Service Loses Ninth Circuit Exemption 3 Appeal

The Ninth Circuit Court of Appeals has handed the United States Postal Service ("USPS") a loss in its attempt to protect information about postal operations pursuant to FOIA Exemption 3.

Plaintiff Douglas Carlson sought the disclosure of the names, addresses, telephone numbers, regular business hours and final collection times for every United States Post Office.  This information was maintained on a database found on the USPS website.  The USPS denied the request, saying that pursuant to 39 U.S.C. Section 410(c)(2), and therefore exempt under FOIA exemption 3.

The United States District Court for the Northern California affirmed the USPS withholding.  However, on appeal, the Ninth Circuit Court of Appeals disagreed with the district court ruling. 

Initially, the Circuit Court found that 39 U.S.C. Section 410(c)(2) was an exemption 3 statute.  However, the court found that the information sought by Carlson was not the type of information withholdable under the provisions of the statute.  Thus, the case was reversed and remanded and Carlson was awarded costs for bringing the appeal.

9th Circuit Rules Vietnam Era PDB's Withholdable

The 9th Circuit Court of Appeals has ruled that the CIA properly withheld two Presidential Daily Bulletins ("PDB") pursuant to FOIA Exemption 3.  The Exemption 3 statute is the National Security Act, 50 U.S.C. Sections 403-1(i)(1) and 403g.

Plaintiff Larry Berman sought the PDB's provided to then President Lyndon B. Johnson on August 6, 1965 and April 2, 1968.  The CIA withheld the PDB's pursuant to FOIA exemptions 1, 3 and 5.  Following the filing of a lawsuit, the district court upheld the FOIA's withholding of the PDB's pursuant to FOIA exemptions 3 and 5.  Ultimately, the Appeals Court held that the PDB's, even though they are 42 and 39 years old, are withholdable pursuant to Exemption 3.

NSA Withholding of Secret Wiretap Information Upheld

Judge Ellen Segal Huvelle of the United States District Court for the District of Columbia has affirmed the National Security Agency's ("NSA") denial of certain information concerning its warrentless wiretap program requested by People for the American Way.

NSA withheld the material sought by People for the America Way pursuant to FOIA Exemptions 1, 3 and 5.  Judge Huvelle found that the NSA's declarations were sufficient to allow the NSA to use Exemptions 1 and 3 to withhod the material.  Because the material was withheld by those two exemptions, Judge Huvelle did not make a determination as to the use of Exemption 5 on the withheld material.