The FOIA blog

PA House Finalizes Open Records Bill

The Pennyslvania House put on finishing touches of a bill it hopes to vote on in mid-November.  Details can be found here. 

In the coming days, there will be comments and criticism concerning the House version of the bill, and I'll have them as they come.

PA Open Records Reform Fight Continues

The fight to reform Pennsylvania's Right to Know Law Continues.  Last week, a House panel actually weakend the proposed bill.  House legislators are going to work on the bill this week, and this Philadelphi Inquirer editorial hopes they kill the exemptions placed in the bill last week.

This is a classic case of legislation being like sausage.  In the end it may taste good, but watching it made isn't a pretty sight.

FTC Wins (Mostly) FOIA Decision on Alcohol Regulation Documents

Judge Royce Lamberth of the United States District Court for the District of Columbia has issued an opinion on Carter, Fullerton and Hayes, LLC's lawsuit against the FTC for documents pertaining to that agency's regulation of alcohol.

Judge Lamberth granted summary judgment for the FTC on most of the issues involved.  He found that the agency's search for documents was adequate as was the descriptions of the withholdings on the majority of its Vaughn index.  Additionally, the judge granted summary judgment for the FTC on its use of FOIA Exemptions 2, 5 and 6.

The only instance that summary judgment wasn't granted for the government was in its descripition of its ability to segregate records it had withheld in full pursuant to Exemption 5.  The FTC will now attempt to explain why it couldn't futher segregate and release factual records from these othewise exempt Exemption 5 records.

Education Department Loses School Voucher FOIA Case

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.   

DOJ Guidance on Agency Annual Reports

The Department of Justice has issued this memo entitled "Supplemental Guidance for Preparation and Submission of Section XII of Agency Fiscal Year 2007 Annual FOIA Reports."  DOJ has also issued this template  to use when submitting Backlog Reduction Goals for Fiscal Years 2008, 2009 and 2010.

I know I sound like a broken record, but if agency FOIA programs don't get any more money, they can have every conceivable backlog reduction goal in the world and they won't make backlogs go away.  No matter what anyone says, additonal bodies to process FOIA requests are the only way to really make backlogs vanish. 

New Website Publishes Government Documents

There is a new website, governmentattic.org which is publishing otherwise unavailable government documents.  It features a number of FOIA logs from various agencies.

More New Decision Summaries Published by DOJ

The Department of Justice has published its New FOIA Decisions for July 2007 and August 2007.  Please remember that these summaries, like every publication by the Department of Justice's Office of Information and Privacy, is written with the view most favorable to the government. 

Motion for Reconsideration Denied in FCC Telecom Case

Judge Ellen S. Huvelle of the United States District Court for the District of Columbia has denied the Center for Public Integrity's motion for reconsideration from her August 27, 2007 decision concerning the zip codes of areas in which broadband providers had installed their services. 

In her decision denying reconsideration, the Judge found that release of the zip code information would cause the submitters of the information a competitive harm.  Thus, the Judge reiterated her earlier decision that the information was protected pursuant to FOIA Exemption 4.

Around the States: Nevada and Pennsylvania

The Pennsylvania House State Government Committee has passed an overhaul of the state's open records law.  This story discusses the maneuvering done by the panel.  Last minute changes to the law, making such things as certain e-mail untouchable, makes the revised law not as much as an improvement as it could be and promises that the debate may take a bit longer.

On a brighter note, Nevada has enacted new open records legislation, which requires government agencies to respond to a written public records request within five days.  Previously legislation had no time limit for response.

Forest Service, Environmental Group Settle FOIA Lawsuit

The Associated Press is reporting that the Forest Service and Wildlands CPR have settled the FOIA lawsuit the environmental group brought in the United States District Court for the District of Montana for records pertaining to timber sale records, policies for off-road vehicles, watershed analyses, geographic information system records and other material from 84 national forests.  The Forest Service had previously denied the plaintiff's requests for a fee waiver to get this information.

This case illustrates a couple of things.  First, agencies will push at the administrative level even where their position has very little standing in the law.  Basically, they will dare a requester to go to court.  In this case, the requester did, and the government blinked. 

Second, this shows the problem with FOIA attorney fee recovery.  Because there was no decision by the court that made the government change its previous position, the plaintiff is not entitled to a recovery of the attorney fees.  This, of course, makes it more difficult for requesters without deep pockets to bring FOIA lawsuits in the first instance--and is one of the subjects of the FOIA amendments pending in Congress.