The FOIA blog

Government Seeks Stay of Release in Telecom Lobbying Case

Recently, I told you about the Electronic Frontier Foundation's ("EFF") victory in its bid to gather documents about the Telecom industry's lobbying effort to get retroactive immunity on warrantless surveillance.  According to EFF, The government sought a sixty day stay of the Court's order which was denied, they have now sought a shorter thirty day stay.

Stay's like this are normally granted by courts because a release of the document moots an appeals the government has the right to bring.  That being said, DOJ should really read the Obama/Holder FOIA memorandum and release the documents in light of the court's decision in this case.

DEA Fails to Use Proper Language in Adequacy of Search Declaration

The DEA lost a recent bid for summary judgment because its declarant failed to aver that she had either personal knowledge of the search or relied on information provided to her by the individuals who actually conducted the search.  The decision of Ricardo M. Urbina of the United States District Court for the District of Columbia can be found here.

FBI Loses Adequacy of Search Decision

Judge Gladys Kessler of the United States District Court for the District of Columbia has ruled against the FBI where the FBI argued that its search for responsive records was adequate.  Namely, the court finds that the FBI's search declaration was devoid of the necessary elements set forth in FOIA case law such as a description of the search terms used.  

Update on Laurence Jarvik's FOIA Lawsuit Against the CIA

For those of you following FOIA lawsuits that I have previously written about, journalist Lawrence Jarvik has refiled and amended his complaint against the CIA concerning its activities in Uzbekistan in 2005-2006. 

Last year, Jarvik's complaint against the CIA for not granting him a fee waiver was dismissed.  He then promised to pay the fees and refiled the complaint.  The CIA processed the records and withheld them pursuant to FOIA exemptions 1 and 3.  However, the lawsuit said the CIA should process the records, not release them.  So Jarvik has now filed an amended complaint challenging the withholding and the CIA will now attempt to justify its actions before the Court.

 

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. 

Obama Administration Releases Health Care Visitor Logs

The Obama Administration has released the Health Care visitor logs In response to the the just filed lawsuit by Citizens for Responsibility and Ethics in Washington ("CREW") for the records. The Obama Administration made the release last evening and claims to be continuing to evaluate the policy in other lawsuits brought by CREW and other groups.  [Ed. note--I do legal work for CREW but am not involved in this matter.]

My Take On the DOJ Argument To Withhold Cheney Interview

Stuck in a time warp, the Department of Justice has made its arguments for withholding the FBI's interview of former Vice President Richard Cheney before United States District Court Judge Emmet Sullivan.  Politico has the details here.

Citizens for Responsibility and Ethics in Washington is seeking the document [ed. note-- I do work for CREW but have not worked on this matter].  The government has stated that Cheney did not ask for confidentiality when interviewed, meaning exemption 7(D) of the FOIA doesn't apply.  The government's argument today, that they should be able to wait five to ten years to release this type of information is basically the executive branch trying to write and implement legislation before the judicial branch. 

My take on their argument is that the material should be released and executive branch people who now or will work in the government in the future should act ethically; they will then have no problem with being interviewed or having any interview of themselves being released because they would have done nothing wrong.  Maybe I live in a world populated by Frank Capra idealism but that is the government we should be aiming for, not the lesser standard argued for by the Department of Justice.

Update on Jefferson Morley's Lawsuit Against the CIA

Journalist Jefferson Morley is pushing on with his FOIA lawsuit against the CIA for records about George Joannides, the deceased CIA Officer whose records he seeks.  He recently filed a declaration with his refutions of the affidavit filed by the CIA's Chief Information Officer Delores Nelson.

Morley's latest write-up on his lawsuit can be found here, and the declaration can be downloaded here:  Download Sixthmorelydeclaration

Judicial Watch Sues CIA Over Interrogation Records

Judicial Watch has joined the parade of public interest groups suing the CIA over Interrogation records.  Their press release which includes a link to their complaint can be found here.

Court Rules on FOIA Litigation Timing Issues

The Government has been scolded by United States District Judge Paul L. Friedman of the District of Columbia for attempting to shift the burden on withheld documents to the requester and proposing an unduly long briefing schedule.  

While many FOIA requesters will work with agencies to lessen their burden on justifying withheld information, it is always important to remember that it is the agencies burden and if they aren't going to release the information they must fully explain why it being withheld.  This opinion is a clear example of that.