According to this report, the FCC has denied a request and subsequent FOIA appeal from the AP for a document the FCC approved at a meeting. The rationale for the non-disclosure is that the document is protected pursuant to the deliberative product privilege of FOIA exemption 5--even though the commissioner's actually approved the decision at a public meeting.
It's an interesting theory, even if I don't buy it.
United States District Court Judge for the District of Columbia Colleen Kollar-Kotelly has largely ruled against NIH in a lawsuit for records brought against it by In Defense of Animals for records concerning the Alamogordo Primate Facility and the Chimpanzees maintained therein.
In the detailed 46 page opinion, the Court found against the government on nearly all issues decided. Initially, Judge Kollar-Kotelly found that the government failed to adequately describe its search for responsive records. She stated that the defendant's use of the date of the search as the cut off date for the request per government policy was not proper in this situation. This was because the government failed to address if it was reasonable for there to be an eleven month lag in making the production of records from the time of the search to the time of the release. The court ordered a new search not earlier than the date of the decision and specifically ordered the government to advise the requester of the date of the search. The Court also found that the medical records of the chimpanzees were agency records even though they were in possession of the contractor. The Court said NIH must search these records.
Next, the court found that the agency failed to meet its burden on exemptions 4 and 5 concerning incentive payments for the contractor and NIH Questions in the revised contract proposal. The government failed to establish that the contractor was the source of the information on the incentive payments and therefore, it wasn't protectible pursuant to exemption 4. Further, the government failed to meet its burden to show that that this information was protectible under the deliberative process privilege. Finally, the court found that the government failed to meet its burden under exemption 6. The government tried to protect various information because the argument that it would violate the personal privacy of animal care workers. However, the court found the information doesn't reveal information that relates to specific individuals and is therefore not withholdable pursuant to exemption 6.
Finally, the court found that the government must release segregable information on certain documents and that the plaintiff was entitled to a public information fee waiver.
In a detailed decision that really explains what the deliberative process privilege is for, United States District Court for the District of Columbia Judge Rosemary M. Collyer has ordered the IRS to release certain documents that she did not consider exempt under the deliberative process privilege. The detail about where documents were or were not involved in agency policymaking will likely make it an oft cited decision in the future.
The case revolved around the law firm Mayer, Brown, Rowe and Maw, LLP's attempt to get documents from the IRS about Lease-in/Lease-out transactions. The case originally dealt with 30,000 documents but at the time of the opinion had been narrowed to only 27.
Two major issues were addressed in the opinion. The first was the plaintiff's contention that the government must establish evidence that alleged predecisional documents were not incorporated into a final document or were not part of internal agency secret or working law. While the IRS claimed they didn't have to claim this, the Judge was able to sidestep the issue by finding that the IRS statements on the issue established that there was"an absence proof that these documents had been adopted, directly or indirectly, as secret or working law." Thus, the judge granted summary judgment for the IRS on the issue.
Next, the court looked at individual documents to determine if they were protected pursuant to the deliberative process privilege. The court found that a draft press release as well as a slide meant for briefing a wide IRS audience once a revenue ruling was issued were not protected by the deliberative process privilege because they were not associated with any agency policy formulation. Further, draft letters to the Norman Mineta, then Secretary of the Department of Transportation were held not deliberative because "interagency politics is not the stuff of agency policymaking."
Documents where no author could be identified as well as handwritten notes where the author was unknown were also held to not be protected pursuant to the privilege. It was not established that these documents were used in the agency's decision making process and therefore were not protectible.
The IRS was allowed to withhold some documents. Task force recommendations were protected as well as handwritten notes of a known author that were used in the decision making process were held to be exempt.
Judge James Robertson of the District Court for the District of Columbia has found that the deliberative process privilege protects government records opining on various aspects of the decision to create a .xxx Internet domain. The plaintiff in the case had said the records should have been released due to the misconduct exception for otherwise deliberative information under the the deliberative process privilege. The Court, however, found that the misconduct exception was not nearly as broad as the plaintiff claimed and the government's decision making processes invoked in this case were proper--even though the government is not the ultimate decision maker in creating domain suffixes.
In a lengthy 2-1 decision, the United States Court of Appeals for the District of Columbia Circuit has decided in the National Association of Military Justice v. The Department of Defense, that opinions solicited from outside attorneys on agency policy meet the inter/intra agency threshold test of Exemption 5, and are therefore, withholdable under the FOIA.
The records at issue are recommendations from non governmental attorneys to the Department of Defense ("DOD") concerning recommendations on regulations establishing terrorist trial commissions. The recommendations were specifically solicited from the attorneys by the DOD. DOD withheld the recommendations pursuant to Exemption 5's deliberative process privilege. The requester argued that the documents were not inter/intra government, and pursuant to the Supreme Court's holding in Department of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001), the documents must be released.
Two judges (Henderson and Williams) agreed with the DOD and found that the holding in Klamath did not invalidate a line of precedent in the D.C. Circuit that allowed outside consultants, such as the lawyers in this case, to be invalidated from Exemption 5. The Court drew distinctions from the present case and Klamath in reaching its decision.
However, another judge on the panel (Tatel) disagreed with the conclusion and stated that the holding in Klamath prevented the outcome reached in the case.
It will be interesting to see if the requesters press this and try to obtain a rehearing before the entire Court and/or the Supreme Court.
The IRS has lost a decision in which the plaintiff argued that a decision in a non-FOIA that certain privileges were not available for documents estopped the IRS from arguing that the same privileges were still applicable in the FOIA context.
The case of Stonehill v. Internal Revenue Service involves records created in the 1960's. The estate of Stonehill is currently trying to reverse a previous tax judgment against it, and is seeking the documents in numerous forums to assist in this fight.
The IRS argued that documents it withheld were exempt pursuant to FOIA exemptions 5, 6 and 7(C). Plaintiff contested these exemptions, and in many cases, the Court agreed with plaintiff.
Judge John D. Bates of the District Court for the District of Columbia has held that collateral estoppel (issue preclusion) denies the IRS from asserting exemption 5 privileges that were previously denied in a non-FOIA Federal Rules of Civil Procedure Rule 60(b) case. In other words, if the IRS lost its privilege arguments in another court, even if it wasn't a FOIA case, they can't assert those privileges in the FOIA matter. However, the IRS did not waive other privileges or withholdings on where those privilege/withholding arguments were not previously made.
The IRS also lost its argument to withhold certain information pursuant to FOIA exemption 6/7C (the privacy exemptions). The IRS was attempting to withhold the names of certain IRS special agents. The Court found that the government failed to show a privacy interest in one agents name where, in this case, other agents have been previously identified in the matter. Thus, the Court concluded, the public interest asserted by the plaintiff is greater than the negligible privacy interest identified by the government.
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".
I don't rant much on this blog, but I really find this story troubling.
The Washington Post today reported that the Bush Administration is planning to classify much of the 2300 pages of documents responsive to the Electronic Frontier Foundation's request to the Department of Homeland Security for material concerning negotiations between the US and the EU on sharing airline passenger information.
The request was made in the fall of 2006 and after a lawsuit was filed in the Spring of this year, Judge Ellen Segal Huvelle told DHS to finish processing by November 1, 2007. However, the government has now said they need more time because they need to classify a large number of the documents.
This response by the government raises a number of interesting questions to FOIA watchers. First, why in the world weren't these documents, if they are truly classifiable, classified when they were created (as they should have been).
The answer to this question is that they probably aren't really classified, but under a very broad and liberal Executive Order and case law that gives the government a great deal of leeway, government attorneys huddling in conferences (and they do huddle, I've been to some of these conferences in the past--no one really disagrees with what the head Bushies want to do) came up with this plan when they realized other exemptions won't work to protect the information.
The most likely exemption would be FOIA exemption 5. I'm sure the government would love to say this information is protected by the deliberative process privilege. However, any documents traded in a negotiation with the EU or other sovereign nation would likely fail the inter/intra government part of exemption 5. Thus, it's much easier to say they are classified and release would harm our relationships with other nations. So, the fight will be over exemption 1.
I'm hoping that not only does the EFF fight the classification on substantive grounds, but also the very important procedural grounds of the Executive Order allowing for classification. What I mean is that they need to make sure the government verifies that the individual's classifying the information actually have the authority to make those decisions.
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!
In a major blow to the Department of Education, U.S.Federal District Court Judge Coleen Kollar-Kotelly has ruled that documents that the Department exchanged with a local government and two private entities fail to meet the threshold requirements for Exemption 5, and therefore must be released.
Plantiff People for the American Way sought the documents concerning the D.C. Public School's voucher program. The Department of Education withheld documents it exchanged with the D.C. Mayor's Office and two private entities that were doing studies on the program (but not, the judge ruled for the Department of Education). In a lengthy analysis, the court found that under the Supreme Court's holding in Dep't of the Interior & Bureau of Indian Affairs v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001), these exchanged documents were not "intra or inter agency" and therefore were not protected pursuant to Exemption 5.
This is one of the most detailed discussion of the issues brought forth under the Klamath decision. I would expect more in the future as the federal government continues to trade documents with other entities, in sometimes undefined relationships.
UPDATE: A Stay of this case has now been issued until November 26, 2007 to allow the government to decide if it wants to appeal the decision. The stay has a few caveats to it and if appeal is not sought by November 26, 2007, the documents are to be released on November 30, 2007.
