The FOIA blog

Details on FBI Wiretap Program Released via FOIA

The Electronic Frontier Foundation's request to and subsequent lawsuit against the FBI has started to result in the release of documents about the FBI's wiretap program.  This article analyzes the released information and discusses how the program works.

Another Carnival of Open Records

Just in time for Labor Day, it's the fourth Carnival of Open Records.

Happy Birthday to the FOIA Blog!

Today marks one year since I made the first posting in the FOIA Blog.  I'd like to thank all of you who have come by and read the blogs.  I especially enjoy the feedback I get from readers.

The past year has been eventful in the FOIA world.  Congress has tried on two attempts to pass amendments to the FOIA--and may actually send a bill to the President within the next month or so.  Courts have issued a number of interesting and insightful decisions on numerous FOIA issues, helping a complex body of case law to evolve further.  And a number of states have worked at changing their own access laws.

As I continue to post on the world of government disclosure during The FOIA blog's second year, feel free to check back here on a regular basis. 

Ruling on NPS Lincoln Memorial Video Case

Judge Emmit G. Sullivan of the District Court for the District of Columbia has issued a detailed 52 page opinion on the processing of a FOIA request by the National Park Service ("NPS") on material responsive to its plans to alter an eight minute video shown at the Lincoln Memorial since 1994.

This case began when the media reported that the NPS was going to alter the video it showed at the Lincoln Memorial due to complaints about it from conservative groups.  The video shows footage of gay rights, pro-choice and anti-war demonstrations.  Plaintiff's requested information about these plans and subsequently filed the lawsuit. 

The Court found that the NPS did not adequately describe its search for responsive documents because it did not identify the search terms used or why the scope of the search was limited to certain files or personnel.  The Court found that most of the documents withheld pursuant to the deliberative process privilege of Exemption 5 were protectible, however some of the documents were ordered released by the Court.  As to Exemption 6, the plaintiff's received a win in that the Court found that the names of those individuals who sent e-mails about the video were not protectible, only these individuals' personal information was protectible.  Finally, the Court declined to rule on if the e-mail addresses were protectible pursuant to Exemption 6. 

Interesting Decision in Privacy Act Class Action Suit

What happens when there is a release of a group of individual's information under the Privacy Act, but the individual's submitting evidence to the Court about their damages show only an emotional harm from the release?  Well, the result in Rice et al. v. USA is that the named plaintiff's will have their claims dismissed.

Judge James Robertson of the District Court for the District of Columbia has dismissed the claims of the named plaintiffs in a class-action against the USDA for a release of their financial information pursuant to a FOIA request.  In making his ruling, the Judge first found that even though these were business records of the plaintiffs, they were about them as individuals and therefore covered by the Privacy Act.  However, the Court ultimately decided that the descriptions of the emotional harms suffered by certain of the plaintiffs in the case did not rise to the level of a harm that would allow recovery pursuant to Privacy Act Section 552a(g)(4).  Thus, the named class members claims have been dismissed.  The Court has left open the door for those not named to sue individually and provide evidence of harm that rises higher than that demonstrated by the class.

This case is a great example of how difficult it is to successfully file a wrongful disclosure in a Privacy Act suit.  Even though the plaintiffs were anguished by the disclosure of their financial information, they could not point to a harm that rose to the level of the Privacy Act that permitted a recovery. 

2007 Florida FOIA Summit

The Brechner Center For Freedom of Information has announced the 2007 Florida FOIA Summit.  The event promises to be full of FOIA events, concerning both the state of Florida and national FOIA matters.

Consumer's Checkbook Bests HHS on Suit for Medicare Information

Consumer's Checkbook has won a FOIA lawsuit against the Department of Health and Human Services ("HHS") and it's component agency, Centers for Medicare and Medicaid Services ("CMS").  Judge Emmit G. Sullivan of the District Court for the District of Columbia has ordered CMS to release unredacted portions of all Medicare claims submitted by physicians in the District of Columbia for 2004 and to grant Consumer's Checkbook a fee waiver for this material.

The lawsuit developed after plaintiff made a request in March of 2006 for the Medicare claims for five localities (besides D.C., they sought Illinois, Maryland, Washington and Virginia) and sought a fee waiver.  CMS denied the request in June of 2006 saying they couldn't "satisfy the request utilizing a reasonable effort."  CMS did not reach a decision on the fee waiver at that time.

Ultimately, Consumer's Checkbook sued CMS.  After the suit was filed, CMS said they could actually produce documents, but since they were denying the fee waiver it would cost Consumer's Checkbook $3,944.70 per each of the five localities for the information.  Consumer's Checkbook then temporarily narrowed the scope of the request, but appealed the denial of the fee waiver.  The government moved for summary judgment on the fee waiver issue because at the time of the lawsuit, Consumer's Checkbook had not exhausted its administrative remedies.  Shortly thereafter, it denied the fee waiver appeal of Consumer's Checkbook but said it would release the documents in full upon payment.

Consumer's Checkbook then filed an amended complaint on April 4, 2007.  The government issued a renewed motion for summary judgment, adding to its fee waiver arguments an argument that it could withhold certain information pursuant to FOIA Exemption 6. 

Judge Sullivan disagreed on all three points with the government.  He found that since the fee waiver had been appealed and decided, the administrative remedies were exhausted.  He next found that Exemption 6 did not protect the annual amounts of Medicare reimbursements to physicians because the public interest (in finding out about government payments to third parties) outweighed the privacy interests of the providers.  In reaching his decision, the Court discussed a line of cases that found that business interests, such as the payments from Medicare, had a lesser privacy interest than other personal information that would reveal intimate details of an individual.  Finally, the Court found that the plaintiff met the requirements of the fee waiver regulations set forth by HHS and therefore, a fee waiver was warranted.   

The government now has a month to release the information.  It will be interesting to see if they push for an appeal or make a timely release per the Court Order.  It should be noted that a trend seems to be occurring in the successful fighting of fee waiver denials by plaintiffs.

White House Office of Administration Claims it is not Subject to FOIA

Here's the AP Story on the Department of Justice's latest filing in a lawsuit against it by Citizens for Responsibility and Ethics in Washington ("CREW") (Note--I do some work for CREW, but am not involved in this specific matter) seeking records from the White  House Office of Administration.  It seems that the official position is now that the WH Office of Administration is not subject to the FOIA, even though it has issued FOIA regulations.  Here is the filing, CREW's statement and a very good Washington Post article on the matter.

I have an idea about this matter.  The FOIA legislation now pending before Congress should be amended so that the White House Office of Administration is specifically made an agency subject to the FOIA.  This would end any administration's attempt (Democrat, Republican or Third-Party) to keep records maintained in that office secret.

Virginia Coalition for Open Government Newsletter

The Virginia Coalition for Open Government's Summer newsletter is out.  It is chock full of information about FOIA happenings in Virgina.

Washington Public Records Accountability Task Force Named

Washington Gov. Chris Gregoire has announced the appointments to the State's "sunshine" committee.  This group will review  exemptions to public disclosure laws and make recommendations on whether these exemptions are still needed within the framework of the state public record laws.

Once again, it is the states, not the federal government, that are making forward moving changes in public records law.  Whether or not the committee ultimately recommends removing exemptions, just the fact that the state is willing to look at taking these steps is a positive move for requesters.