The FOIA blog

Appeal of Vice-President Visitor Logs Lawsuit Dismissed

A three judge panel of the United States Court of Appeals for the District of Columbia has dismissed an appeal of a lower court ruling that the Secret Service must process visitor logs relating to the Vice-President for lack of subject matter jurisdiction.

In the lawsuit brought by Citizens for Responsibility and Ethics in Washington ("CREW"), [Ed. note-I do legal work for CREW, but have not done anything on this matter] the district court had ruled that the records sought were agency records pursuant to FOIA and that the Secret Service needed to process them.  Rather than comply with the order, the government appealed the order.  However, the appellate court decided that it had no subject matter jurisdiction as this wasn't a final order that could be appealed, nor did it fit any of the exceptions that would allow appeal at this time.  Thus, the case was sent back to the district court for further action.   

White House Office of Administration Ordered to Preserve E-Mails

Even though Citizens for Responsibility and Ethics in Washington ("CREW") [Ed. note-I do some legal work for CREW, but am not involved in this case at present] lost at the United States District Court for the District of Columbia in its attempt to get e-mails from the White House Office of Administration ("OA") because the Court ruled that the OA was not subject to the FOIA, CREW has gained an order requiring the OA to preserve all material that would be subject to the FOIA if CREW prevails on appeal.

Judge Colleen Kollar-Kotelly ruled that the OA must preserve the material until the resolution of CREW's appeal or January 5, 2009, whichever event is earlier.  If the appeal is not resolved by January 5, 2009, CREW may file a renewed motion for a stay past that date.

Government Sued Over Cell Phone Tracking Data

The ACLU and the Electronic Frontier Foundation have filed suit in District Court for the District of Columbia over a FOIA request made for information on the government's use of people's cell phones as tracking devices.  The complaint, a press release from the ACLU and other information on the suit may be found here.

Yet Another (and Different Than the Others) Retroactive Attorney Fee Decision

Judge Reggie B. Walton of the District Court for the District of Columbia has found that the attorney fees provisions of the FOIA amendments are not retroactive.  This is the second decision from the D.C. District Court on the issue in less than a week and they reach different conclusions. 

I know of at least two more cases on this issue in the pipeline, so this should get very interesting (at least to us that are interested in these types of things!)

FBI Request for Stay Cut by Five Years

You win some, you lose some and once in a while, the baby is cut in half.  Judge Reggie Walton of the U.S. District Court for the District of Columbia has granted the FBI a Open America stay in the Electronic Frontier Foundation's request for information on the FBI data warehouse program.  However, the FBI had asked for a stay of processing until 2013, and the Court's stay of processing is only until August 1, 2008. 

The opinion is interesting in that it details the FBI's arguments about how its workload is rising but that its FOIA Operations have been cut by the current administration. 

NSA May Refuse to Say Whether Detainees Calls Intercepted

The AP is reporting that United States District Court Judge for the Southern District of New York, Denise Cote, has ruled that the NSA may refuse to confirm or deny whether detainees calls to their attorneys have been intercepted by the agency.  The lawyers had made the FOIA request seeking information on whether their phone calls with the detainees had been intercepted.

IRS Ordered to Provide TRAC Data per 1976 Court Order

According to this report from the Seattle Times, the IRS has failed in its attempt to modify a 1976 court order that required the agency to provide information to Transactional Access Records Clearinghouse ("TRAC").  According to the Court, it is not in a position to change the order as the IRS is not currently in compliance with the Court's most recent order of 2006.

Supreme Court Hands Down FOIA Decision

The Supreme Court today handed down its decisionin Taylor v. Sturgell, the first FOIA case to reach the high court in many years. 

The case concerning the issue of claims preclusion, so its precedent is much more than just the FOIA.  Taylor brought a lawsuit against the FAA for some blueprints of a plane made in the 1930's.  Another individual, Herrick, that had a relationship of some type with Taylor had previously filed suit for the documents and lost.  Additionally, Taylor used the same counsel that represented Herrick.

The District Court for the District of Columbia and the Court of Appeals for the District of Columbia Circuit found that under the theory of "virtual representation," Taylor was precluded from bringing his claim for the documents.  Taylor took the matter to the Supreme Court.

Justice Ginsburg, writing for an unanimous Court, initially found that the Court disproves of the theory of virtual representation, which had evolved in the various Circuit Courts.  She wrote that there are six, and only six, exceptions to the rule against non-party preclusion and described each of them.  The Court vacated the finding against Taylor and remanded it to the lower courts to find if one of the six exceptions against non-party preclusion fit the facts of the case.  This exception was that a non party to an earlier case may be precluded if he is a representative or agent of a party who is bound by the prior adjudication.  Thus, the lower courts must decide if Taylor, in pursuing his FOIA suit is acting as Herrick's agent.  The Court stressed the guidelines this must be judged by and stated it was an affirmative defense that the government must prove, not that Taylor must show he is not Herrick's agent.

This is a very good opinion for FOIA requesters because they can now bring suits for material even if others they may have some relationship with brought an earlier suit.  Of course, they may be bound by the prior decision if they have no new facts to allege, but they won't be precluded from initially bringing the claim. 

Here's the AP's report on the decision.

CIA Releases Waterboarding Documents

As part of an ongoing FOIA lawsuit with the ACLU, the CIA has turned over documents relating to waterboarding.  According to this story, the documents are heavily redacted and the ACLU will press on with its litigation.

CIA Continues to Stonewall Jefferson Morley (and Others)

Here is a report from Jefferson Morley in the Washington Independent in which the CIA refused in district court to either turn over documents concerning George Joannides or to explain their actions.  Jefferson Morley is seeking the documents via the FOIA from the CIA.  Joannides is a deceased CIA agent and according to some, is allegedly related to the JFK assassination.

Morley previously defeated the CIA on its initial processing of the records and the case is back in the district court for further proceedings.