The FOIA blog

FBI Loses Informant Case

The FBI has lost its attempt to protect information about its relationship with a confidential informant.  Judge James Robertson of the District Court for the District of Columbia has ruled that the FBI must release information about the FBI's relationship with informant Manny Sanchez to requester Peter J. Hidalgo.  Hidalgo was found guilty of various crimes, due in part, to information provided by Sanchez.

Hidalgo offered evidence that Sanchez had a shady past--and that the FBI assisted him in escaping his various scrapes with the law.  The FBI released one page in part of a 3000 page file, claiming various exemptions to withhold the rest.  However, Judge Robertson found that certain of the FBI's claims were not valid. 

The FBI was ordered to release the amount of payments to Sanchez by the FBI.  In making this finding the judge said that the declaration of David Hardy was insufficient to allow the material to be withheld pursuant to FOIA exemptions 2 and 7(E).

The FBI was next ordered to release information concerning its relationship with Sanchez.  The information that should be released includes material reflecting any FBI misconduct in its relationship with Sanchez, its knowledge of his criminal record, its knowledge of administrative complaints regarding his work, and the FBI's intervention on Sanchez's behalf in criminal matters, including tax evasion.

Not all was lost for the FBI as its use of exemption 7(A) was affirmed by the Court for information provided by the source on the investigations he assisted on.

CIA Loses Case at DC Circuit

The CIA has had a lower court ruling reversed at the United States Circuit Court for the District of Columbia.  The CIA had previously won summary judgment on a case where requester Jefferson Morley sought records on George Joannides, a deceased CIA agent.

The Circuit Court however found that the CIA's search wasn't adequate as it hadn't search usually FOIA exempt operational files because in this case there was an exception that made these files non-exempt from the FOIA in their entirety.  The Court remanded the case back to the lower court for the CIA to search its operational files.  Further, the CIA was ordered to search JFK act files that it had transferred to NARA, but had admitted to keeping copies of as well as to sent to NARA but that aren't to be released to the public until 2017.  Finally, the Court found the CIA's description of its search inadequate and remanded the case for a further explanation of the search.

While the Circuit Court found the CIA Vaughn Index adequate, it found the lower court did not make a segregability finding and remanded the case for it to do so.  The Circuit Court also found that the CIA had properly justified its use of Exemptions 1, 3 and 7(E). 

However, the Court found a number of deficiencies with other exemptions and remanded those portion of the case for further agency explanation.  The Court found that as to Exemption 2, the CIA did not meet its burden in establishing its use of low-2 to withhold certain material and remanded for further explanation.  Likewise, the Court found that the CIA's defense of it's glomar response was also inadequate and remanded that portion of the case for further explanation.  Next, the Court found that the CIA's justification of Exemption 5 was inadequate, thus on remand the CIA will have to explain that exemption's use further.  Finally, the Court also found that the CIA's justification of exemption 6 was inadequate as it never established that any privacy interest in the withheld records existed.

To paraphrase Ricky Ricardo, it looks like the CIA has "lot's of 'xplaining to do". 

Public Citizen Loses Fight for OMB Documents

What is interesting about Federal District Judge Royce C. Lamberth's opinion allowing OMB to withhold documents from Public Citizen concerning agencies abilities to bypass OMB in the budget legislation process is not the finding that OMB can withhold certain documents pursuant to FOIA Exemptions 2 and 5.

What is intersting is that OMB is withholding documents pursuant to Exemption 2 so that other government agencies can't see them, not members of the public at large.  According to OMB, it withheld internal OMB documents so that other federal agencies can see them and then learn ways to circumvent OMB in the budget process.  Talk about your disfunctional government!

 

USDA Blueprints Ruled Withholdable

On its second try, the USDA has won summary judgment on a lawsuit seeking blueprints of its Beltsville, Maryland Agricultural Research Center.  Judge John D. Bates of the United States District Court for the District of Columbia found that the government should that release of the blueprints could harm USDA's ability to keep the research center secure as well as cause possible harm to the many programs that take place at the center.  While there is nothing groundbreaking about this finding, I found the discussion about what programs were housed at the research center to be very interesting.

Customs and Border Patrol Wins Search Issue Case

Judge Reggie B. Walton of the United States District Court of the District of Columbia has ruled against a FOIA requester who was seeking all records on why he keeps being detained at airports, even though he is a citizen who has been used by the U.S. government as a contractor on a number of occassions.

Plaintiff Sina Moayedi is a naturalized U.S. citizen, originally from Iran.  He has been detained on 19 occassions by the U.S. government when he enters the U.S. from overseas travel.  Mr. Moayedi made a FOIA request to Customs and Border Patrol (CBP) and eventually received a printout of the Treasury Enforcement Communications System (TECS) documenting the 19 events.  However, in his suit, Mr. Moayedi said that there should be more material than just that on the TECS database.

The Court disagreed with the plaintiff and found that the CBP search was adequate.  The important point in the Court's finding was that plaintiff only requested material from CBP headquarters, not the field office as is required under the CPB FOIA regulations.  The Court also found that the CBP redactions made pursuant to FOIA exemption 2 were proper.

The bigger, non-FOIA issue is why was Mr. Moayedi detained so many times even though he is a law abiding citizen that the Department of Defense uses as a contractor?  I have a number of clients who have tried to find out, like the plaintiff here, why they had been detained by CBP.  CBP agents at the airport routinely tell the individual to make a FOIA request to find out.  In some instances, the TECS database does give the reason why the person was detained (and the TECS information is often incorrect in the first place).  I hope that CPB would see the bigger picture and come up with a better procedure, than a sketch FOIA request, to assist those like Mr. Moayedi in fixing his problems in re-entering the country.

D.C. Circuit Issues Major FOIA/Privacy Act Decision

The D.C. Circuit has issued an opinion in the case of Michael Sussman v. U.S. Marshals Service which touches on a number of FOIA and Privacy Act ("PA") issues.  The procedural history of the case is complex and somewhat confusing--in short Sussman was appealing a D.C. District Court grant of summary judgment for the Marshal Service pertaining to Sussman's FOIA and PA requests to the Marshals Service and an allegation of a PA violation by the Marshals Service.  The Circuit Court remanded many of the grants of summary judgment on the FOIA request and all matters concerning the PA.  I'll try to touch on the major points of the decision.

The Court remanded the District Courts finding on FOIA exemptions 2, 3, 7(A) and 7(C).  While the Court held that certain internet addresses were ok to withhold pursuant to exemption 2, it found that the government did not meet its burden of proof for this exemption on material it described as "information reflecting communications between agencies" and remanded the withholding of that information back to the District Court for further findings.  The invocation of exemption 3 for information pertaining to grand jury proceedings (FRCP Rule 6(e)) was also remanded for further findings because the agency did not properly show that disclosure of the information would violate FRCP Rule 6(e).

Findings related to the government's use of Exemption 7(A) were remanded as well.  The agency's declarations did not show how disclosure would reveal the focus of a grand jury investigation which would in turn cause interference to the investigation.  Further, on remand, the ongoing proceedings must be pending at the time of the District Court's decision, not at the time of the earlier FOIA request.  Those knowledgable with FOIA issues, know this is a further explanation to a line of cases following the Court's Maydak v. Department of Justice decision decided in 2000.

As to Exemption 7(C), the Court remanded the issue so that the District Court could decide if a third party gave an adequate waiver for FOIA purposes.  The Court found that the issues surrounding the waiver of the third party, even though it arrived late in the proceedings, must still be decided by the District Court.

Procedurally, the Court reiterated its now long standing policy that District Courts must make a segregation finding for its decision to be properly made.  The Court also found that an agency's invocation of an exemption on a motion for reconsideration did not waive the exemption.

Finally, the PA count was remanded because the District Court only addressed the search efforts of the government in terms of FOIA, not the PA.  The search under PA is important because it will determine if the records pertaining to the requester were found in documents located in PA systems of records.  The unlawful disclosure count of the complaint was also referred to the District Court for further findings.

This case is important because of the many areas the Circuit Court made specific findings on areas of FOIA law.  I probably missed some of them, but I'm sure others, such as the fine newsletter accessreports will have an extensive overview of this case in the near future.

USDA Denied Summary Judgment on Blueprints Lawsuit

A United States District Court for the District of Columbia has rejected a motion for summary judgment by the United States Department of Agriculture on a FOIA request for blueprints of a USDA facility.

District Court Judge John D. Bates has held that the USDA did not adequately establish that the requested blueprints were protectible pursuant to FOIA Exemption 2.  The Court ordered the USDA to file new affidavits that better explain how Exemption 2 applies to the blueprints.  The Court further held that even though the plaintiff did not wait the requisite amount of time to file suit after he filed his administrative appeal, it would not grant summary judgment to the government for plaintiff's failure to exhaust his administrative remedies.