The FOIA blog

Navy Sued Over 40 Year Old Crash Report

Theo Karantsalis has sued the Navy over its decision to withhold records pertaining to a jet crash report on an incident that happened 40 years ago.  The fact that this case has gotten this far is testament to the fact that the discretionary release policy espoused by the Department of Justice is largely ignored among many agencies -- the documents at issue are being withheld pursuant to Exemption 5 -- if there was ever a case where discretionary disclosure, at least for part of the records, is appropriate, it's here.

  The complaint can be found here:  Download Navy_complaint

Second Circuit Issues Major Exemption 5 Opinion

The United States Court of Appeals for the Second Circuit has issued a major opinion on Exemption 5.  The case was brought by the Brennan Center for Justice against the Department of Justice ("DOJ"), the Department of Health and Human Services ("HHS") and the U.S. Agency for International Development ("AID").  The request sought three opinions of the DOJ's Office of Legal Counsel given to the Department of Health and Human Services and the U.S. Agency for International Development.  The district court found that the 3 documents were not covered by Exemption 5 and ordered release; the government appealed.

After a lengthy discussion of how an otherwise Exemption 5 protected document can lose that protection, the Court of Appeals found that one of the documents had indeed been incorporated by public comments of HHS.  That document was found to not be protected by the Exemption 5 protection and the district court's release order was affirmed.  The Court of Appeals found that the other two documents were not specifically incorporated or adopted by HHS and were found to be exempt from FOIA release.

The opinion can be found here- Download Brennan Center FOIA Opinion

DC Circuit Rules on Exemption 5 and Waiver

The United States Court of Appeals for the District of Columbia Circuit has ruled that no waiver occurred to an entire universe of attorney notes protected by the attorney work product privilege when some attorney notes had been produced in a criminal prosecution.  The Court found that the notes that had not been produced were not waived and could be withheld in a later FOIA proceeding under FOIA Exemption 5.  The Court also found that the notes that had been produced in the criminal proceeding were already public and didn't have to be released by the government in the FOIA action.

Thompson-Reuters has more on this case here.

 

Ninth Circuit Remands Case for Inadequate Declarations

The Ninth Circuit Court of Appeals has remanded a case against the United States Trade Representative because it found that the government's declarations failed to provide enough information to warrant the finding of summary judgment granted by the district court.  Specifically, the court found that the declarations did not adequately describe the search for responsive records, how the withheld records met the thresshold of Exemption 5 and the Exemption 6 balancing test. 

One of the judges on the three-judge panel, Judge Jay Bybee dissented on the search issue stating he would have affirmed for the government.  However, he joined in with the other two judges on the justification of Exemptions 5 and 6 on the remand.

ACCG v. State Case Summary - DC Circuit

Here is a summary of the District of Columbia Court of Appeals in ACCG et al v. State by the Reporters Committee for the freedom of the Press.  Please note that I am counsel for the appellants in this matter.

Government Wins on Enhanced Interrogation Technique FOIA Suit

Politico reports that the Government has won summary judgment on a lawsuit brought by the American Civil Liberties Union on documents concerning enhanced interrogation techniques used by the Bush administration.  After releasing and segregating certain documents, United States District Judge for the District of Columbia Rosemary Collyer said the government's use of Exemptions 1, 3, 5 and 6 were proper.

Among the Exemption 5 privileges used was the presidential communications privilege which protects material going to the President and his top advisors.

Fed Gold Swap Documents Largely Protected By Exemption 5

Judge Ellen S. Huvelle of the United States District Court for the District of Columbia has ruled that Federal Reserve documents concerning gold swap information is largely protected pursuant to Exemption 5 of the deliberative process privilege.  The plaintiffs argued that because the documents were not created for any specific issue, they did not merit protection under the exemption.  The Court, looking at the documents in camera disagreed and found most of the responsive material to be protected.  One document, however, was found to be solely factual, thereby meriting protection under the exemption.

More details, including the decision itself, can be found on Goldseek.com. 

Friday's Mega FOIA News Roundup

Lots of FOIA items to end the week with, here goes:

My friend Anne Weismann, the Chief Counsel at Citizens for Responsibility and Ethics in Washington ("CREW") writes in the HuffingtonPost about Wikileaks and how, ultimately it will hurt government transparency.

The Coalition for Education Success has sued the Department of Education for documents related to for-profit colleges and the General Accountability Office's report on for profit topics (that the group doesn't like).  The press release can be found here.

The Second Circuit found for the IRS on both its search for responsive documents and its use of exemptions 3, 5 and 7(D) in this FOIA case brought by the children and estate of Mary Adamowicz. 

And finally, UPI.com reports that the names of those SEC employees who diddled away their time watching porn while the economy fell apart should remain out of the public view.

IRS Dealt Setback In FOIA Case

The IRS has been denied full summary judgment in a FOIA case brought by the FPL Group in the United States District Court for the District of Columbia.  FPL Group (FPL stands for Florida Power and Light) has been at odds with the IRS over certain deductions that the IRS considers capital expenses for a number of years--and FPL sought some of the documents through the FOIA. 

The IRS moved for summary judgment; FPL opposed and cross-moved and Judge Ellen Segal Huvelle issued her findings in a lengthy and well reasoned opinion.  There were two basic areas of disagreement that the ruling centered on.  First, was the adequacy of the search.  The judge ruled that the scope of the documents searched for was proper.  However, she found that the actual search, specifically for documents that had been destroyed by one IRS employee, but that may have been maintained by others was not adequate.  Thus, the IRS was ordered to make a supplemental search for these documents.

The second area of disagreement was the IRS's use of FOIA exemption 5.  The court find that many of the documents were properly withheld pursuant to the privileges of the exemption.  However, as the IRS did not file a specific Vaughn index for all of its withholdings, the court was unable to ascertain the appropriateness of all of the withholdings.  Thus, the court ordered further declarations and the submission of certain documents in camera for the remaining documents.

Ninth Circuit Remands Case Concerning Surveillance Lobbying Records

A three judge panel of the Ninth Circuit Court of Appeals has remanded the Electronic Frontier Foundations lawsuit against the government for information pertaining to telecommunications firms lobbying efforts on gaining retroactive immunity protection for participating in the government's surveillance program.  Wired has the opinion here.

The government has already disclosed certain of the records it attempted to withhold at the district court level; namely portions of records the Executive Branch exchanged with both Congress and lobbyists for the telecom firms.  The district court had ruled that they had failed to meet the inter/intra threshold test of exemption 5 and the government wisely decided to not appeal that portion of the district court decision.

While delaying further disclosure of documents, the remand is not all good news for the government.  The remand is due to the fact that, according to the appeals court, the district court failed to properly consider exemption 3 and 5 claims on the records the government continues to appeal. 

The exemption 3 claim is one in which the government is attempting to protect the identity of the telecom firms and their agents (lobbyists) pursuant to portions of the National Security Acts of 1947 and 1959.  The court ruled that the district court did not properly review the withholdings pursuant to this exemption and remanded the case on this exemption for further review by the district court.  Unfortunately, for the government, they had also tried to withhold this material pursuant to exemption 6 of the FOIA.  The district court found that the public interest in the identities of the firms and their lobbyist outweighed any public interest in the material;  the appeals court agreed and affirmed that portion of the decision except for the email addresses of lobbyistss where the names or other identifying information was already located.  If only an email address identified a lobbyist, the court ruled it must be disclosed.

The exemption 5 claim still open in the case is for where records only circulated within the Executive Branch of the government itself.  The district court had stated that none of the records were intra-agency or inter-agency records in making its decision; a fact not supported by the Vaughn indices submitted by the government.  Thus the appeals court remanded this portion of the case for a determination by the district court on the applicability of exemption 5 to records only circulated within the Executive Branch itself.

Thus, this groundbreaking FOIA case goes back to the district court.  Chances are it will return to the appellate court at some point.