The FOIA blog

PA Legislation Update

They are back at it in Pennsylvania, with competing bills for a new state disclosure law in both the Senate and the House working towards completion.  This editorial favors the version in the Senate.

FOIA Legislation Update

I haven't written anything about the FOIA amendments pending in the Congress lately.  According to Dan Friedman of Congress Daily, the legislation is stalled and may not be passed this year.

The more I think about it, the more I think Congress should wait until after the 2008 election (when the make up of the Congress and possibly the White House may be more aligned with requester's interests) and pass better, more wide ranging amendments to the FOIA.  Aside from the fact that the current bill could be better, it isn't likely that Congress would want to go back and pass amendments again after passing the current bill.

NY Times Article on FOIA Lawsuit Filed by Coin Collectors

The New York Times has an article on the lawsuit I filed on Thursday on behalf of my clients against the State Department.

FOIA, National Security and the D.C. Circuit: A Safeguard or a Sham?

The D.C. Bar and the Historical Society of the D.C. Circuit are hosting the above titled seminar on November 29, 2007.  The Hon. Patricia M. Wald, formerly Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit, will moderate the discussion which will be in Q and A format.  Panelists will include Stewart A. Baker, Assistant Secretary for Policy for the U.S. Department of Homeland Security and former General Counsel of the National Security Agency; Thomas S. Blanton, Director of the National Security Archives at George Washington University; the Hon. Royce C. Lamberth, U.S. District Judge for the District of Columbia; and James T. O'Reilly, Professor of Law, University of Cincinnati College of Law, and publisher of the FOIA Reporter.

More details on the event can be found here.

Coin Collectors Sue State Department

I filed the lawsuit described in the press release below today.

Coin Collectors Sue U.S. State Department

The Ancient Coin Collectors Guild (ACCG), an advocacy group for private collectors and independent scholars, has announced the filing of a Freedom of Information Act (FOIA) lawsuit against the U. S. State Department. According to Wayne G. Sayles, executive director of the guild, this action became unavoidable due to “persistent refusal of the Bureau of Educational and Cultural Affairs (ECA) to provide the guild and others with information relating to requests for import restrictions.”  The State Department recently imposed unprecedented import restrictions on ancient coins from Cyprus—requiring importers of even a single common coin of “Cypriot type” to provide unfair, unworkable and unnecessary documentation.

The ACCG formally asked the State Department under FOIA for information relating to requests from Cyprus, China and Italy because, in each case, apparent irregularities in the way these requests were received and managed had caused significant concerns.  Members of the U.S. Senate and the House of Representatives also requested similar information on behalf of the ACCG and others.  “None of these avenues produced responsive replies” said Peter K. Tompa, ACCG president.  “The reason for this lawsuit is that the State Department has refused to provide meaningful information.  We seek transparency and fairness of the process by which decisions affecting the American people are made.”  The ACCG, joined in this suit by the International Association of Professional Numismatists and the Professional Numismatists Guild, is represented by Washington DC attorney Scott A. Hodes.  Mr. Hodes is a former FOIA and Privacy Act attorney for the Department of Justice and the FBI.

The imposition of import restrictions is a remedy made available to the State Department by the Convention on Cultural Property Implementation Act (CPIA) enacted in 1983.  This law, while providing emergency protection for endangered cultural property, includes a detailed and comprehensive series of safeguards to limit overreaching implementation of the 1970 UNESCO accord that it is based on.  The fair and equitable application of this law is viewed by the coin collector community and associated trade as essential to achieving any measure of protection on a broad and continuing scale.  The ACCG argues that fairness and equity can only be satisfied by a system that is transparent and subject to oversight.  They hope that this lawsuit will help encourage the State Department to revamp its procedures to ensure the fundamental fairness to all that the law demands.

To obtain information about membership in the ACCG or to make a donation to the ACCG legal effort, go to http://accg.us or contact ACCG executive director Wayne G. Sayles by telephone at 417-679-2142 or by email at director@accg.us.

Should Adoption Records Be Public?

A debate has grown around the issue of whether adoption records should be made public to those adopted, especially after they are adults.  This article indicates that a new report urges unlimited access to adoption records for adults who were adopted.  Currently, only eight states allow for this information to be released.

I think it comes down to this--Is the interest of the adopted adult greater than the privacy interest of the birth parents.  I don't know the answer to this, nor do I know the psychological effects on the parents or the child.  My guess is that the states will continue to have mixed laws on this issue.

Update:  I want to thank all of those who have left comments on this issue.  As long as the comments stay civil, feel free to comment away.  And yes, I meant in my post that if the records are released they are released only to the adopted child, not the public at large. 

Psychological Tests Ruled Confidential Business Information

Judge Ricardo Urbina of the United States District Court for the District of Columbia has ruled that psychological test results developed by two companies are withholdable pursuant to Exemption 4 of the FOIA as confidential business information.  The companies stated in declarations before the Court that the release of this information would damage the usefullness of the tests in the future, and absent any evidence to the contrary by the plaintiff, the Court accepted the companies arguments.

Article About FOIA Request Made to Citizenship and Immigration Services

This article made me think about the reasons people make FOIA requests and the bureacratic maze the requests get stuck in.  Hopefully, the requester gets her documents soon.

Bushies to Keep Airline Passenger Safety Negotiations Secret

I don't rant much on this blog, but I really find this story troubling. 

The Washington Post today reported that the Bush Administration is planning to classify much of the 2300 pages of documents responsive to the Electronic Frontier Foundation's request to the Department of Homeland Security for material concerning negotiations between the US and the EU on sharing airline passenger information.

The request was made in the fall of 2006 and after a lawsuit was filed in the Spring of this year, Judge Ellen Segal Huvelle told DHS to finish processing by November 1, 2007.  However, the government has now said they need more time because they need to classify a large number of the documents.

This response by the government raises a number of interesting questions to FOIA watchers.  First, why in the world weren't these documents, if they are truly classifiable, classified when they were created (as they should have been). 

The answer to this question is that they probably aren't really classified, but under a very broad and liberal Executive Order and case law that gives the government a great deal of leeway, government attorneys huddling in conferences (and they do huddle, I've been to some of these conferences in the past--no one really disagrees with what the head Bushies want to do) came up with this plan when they realized other exemptions won't work to protect the information.

The most likely exemption would be FOIA exemption 5.  I'm sure the government would love to say this information is protected by the deliberative process privilege.  However, any documents traded in a negotiation with the EU or other sovereign nation would likely fail the inter/intra government part of exemption 5.  Thus, it's much easier to say they are classified and release would harm our relationships with other nations.  So, the fight will be over exemption 1.

I'm hoping that not only does the EFF fight the classification on substantive grounds, but also the very important procedural grounds of the Executive Order allowing for classification.  What I mean is that they need to make sure the government verifies that the individual's classifying the information actually have the authority to make those decisions.

Interior Department Issues Proposed Amended FOIA Regulations

The Department of the Interior has published these proposed amended regulations for its FOIA program.  The deadline to respond is December 24, 2007.