The Senate Judiciary Committee plans to take up the FOIA bill pending before it on Thursday, September 18th. The Committee schedule has a number of judicial nominations and other bills pending for action on Thursday as well.
My friend, Amy Bennett from OpentheGovernment.org, has this editorial that has appeared in a number of newspapers around the country on the amendments to the FOIA that is pending before the Senate.
As I've said before, there are only a limited amount of days before Congress recesses for the year, so the Senate really needs to get busy on this issue or the legislation will have to be reintroduced in 2015.
Government Executive reports that the Inspector General of the Treasury ("TIGTA") is facing a lawsuit on its response on a request made to the IRS for documents relating to possible White House unauthorized access or disclosure of tax records belonging to political donors or candidates since 2006.
The IRS referred the request to TIGTA and TIGTA gave the a we can neither confirm nor deny response that records request citing underlying FOIA privacy exemptions. Now the requester, Cause of Action, has filed suit charging that a response TIGTA made to Sen. Charles Grassley as evidence that records do exist and that revealing the material to Grassley vitiates any exemption claim made to the requester.
The Inspector General of TIGTA is currently under fire for his role in the investigation of the IRS and tax-exempt groups. Allegations have been made that he failed to advise lawmakers and the public that the IRS also asked quesitons of a number of groups that were not right leaning that were seeking tax-exempt status.
United States District Judge for the District of Columbia Royce Lamberth has ordered the EPA to submit to discovery in a case brought against it for records pertaining to communications of high level EPA officials and outside individuals. The court found the EPA's declarations concerning its search for responsive records were incomplete on two factual issues and is allowing the plaintiff limited discovery on the issues.
The major news from this case thus far has been that EPA administrators have used alias email accounts since the 1990s- a practice that makes it difficult to search for there records if no one at the agency knows what the alias name is.
This is shaping up to be one of the most interesting FOIA cases in some time.
The Sunshine in Government blog reports that Sen. Charles Grassley (R-IA) is poised to reintroduce his amendment to the Farm Bill blocking release of certain information through the FOIA rather than letting the existing FOIA law take care of what is releaseable and what isn't.
The United States Court of Appeals for the District of Columbia Circuit has issued a major FOIA decision in CREW v. FEC. [ed. note - I do legal work for CREW but was not involved in this decision].
The decision decides what constitutes a FOIA determination and that decision is adverse to the one espoused by the government. Basically, a determination requires the agency to actually advise a requester what is specifically going to do -- i.e release documents fully, release with specific exemptions and it is not enough for an agency to say we are going to process and release the records.
Hopefully, the Attorney General and his staff will make note that those under his command espoused a position directly in conflict with policy guidance he and President Obama set forth four years ago and deal with it accordingly.
One of FOIA Requesters biggest complaint is the time it takes for an agency to process the request. Often, requests will go into litigation and if a timetable for the agency to process is not worked out between the parties, the government will seek a stay of the case to allow it to process the records. A number of factors will be weighed by te agency in seeking the amount of time it requests to process the records. The agency will then file a declaration seeking the court's permission for the delay -- this is called an Open America declaration. Rather than bore you with a synopsis of where that came from, suffice it to say an agency must show that its backlog causing the delay was unexpected and that its making progress in reducing the backlog.
In a recent case, the FBI asked for a stay of 29 months to finish processing. United States District Court Colleen Kollar-Kotelly had other ideas, finding that the FBI failed to meet the requirements that would allow it to get a full Open America Stay and ordered the FBI to finish processing the documents all non-classified records in the request by August 1, 2013.
There are other similar cases pending in the District Court and it will be interesting to see if this decision affects the outcomes of those cases.
Judge Beryl A. Howell of the United States District Court for the District of Columbia has issued an 83 page opinion on National Security Counselors' ("NSC") complaints against the CIA on a number of procedural roadblock's the CIA has put up against NSC FOIA requests to the CIA. NSC had filed three seperate lawsuits that the court consolidated into one action. Judge Howell dismissed a number of the counts of the complaints; however in doing so she described a path as to how the same counts could be heard by the court and also issued a number of warnings to the CIA that even though they won the battle, they probably didn't win the war. Some of the claims were not dismissed and that part of the lawsuit will continue.
Judicial Watch has announced that it has filed a lawsuit against the Federal Reserve on a FOIA request it made for records pertaining to the AIG bailout that began on September 16, 2008. The Federal Reserve has not taken any processing action on the May 2012 request as of the date of the filing of the lawsuit.