The FOIA blog

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. 

Another Court Grants Attorney Fees Retroactively Under New Law

Judge Royce Lamberth of the District Court for the District of Columbia has granted attorney fees retroactively to Judicial Watch under a lawsuit against the Bureau of Land Management.  During the pendency of the lawsuit, but not because of a decison of the Court, Judicial Watch received documents from the government.  Satisfied with the documents, the parties settled the lawsuit except for the issue of attorney fees and costs. 

The Court found that under the Open Government Act of 2007 (2007 FOIA Amendments) attorney fees could be granted retroactively to a plaintiff.  This meant that a plaintiff basically only needed to show that the lawsuit served as a catalyst for the release of documents--not that it had to show that an opinion of the court resulted in the release of documents (which was the standard for FOIA attorney fees prior to the 2007 FOIA Amendments.  As Judicial Watch received the documents after it filed suit against the defendant (after the defendant failed to release the documents on a number of dates it had promised a release by), the Court found that under the law, the plaintiff had  substantially prevailed.  The Court then found that Judicial Watch was both eligible and entitled to attorney fees.

This is an important decision as it is the first decision by a judge for the District Court for the District of Columbia, which is the court that handles approximately half of all FOIA lawsuits.  Other attorney fee applications seeking retroactivity are in the pipeline, so it will be interesting what the final outcome of this issue is.     

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.

FCC Claims Final Decision is Deliberative

According to this report, the FCC has denied a request and subsequent FOIA appeal from the AP for a document the FCC approved at a meeting.  The rationale for the non-disclosure is that the document is protected pursuant to the deliberative product privilege of FOIA exemption 5--even though the commissioner's actually approved the decision at a public meeting.

It's an interesting theory, even if I don't buy it.

Intersection of State Law and FOIA

This article points out an interesting problem created when state records go to the Feds, but for some unknown reason the state doesn't keep a copy of the records.  In this case, Florida sends records to the FBI for an ongoing FBI investigation.  The request to the state comes back with a no records response, and the FBI says its an ongoing investigation and withholds the records pursuant to Exemption 7(A).

Aside and apart from the problem about being delayed in getting the records, I don't blame Floridians for being upset about this practice.  Florida clearly has some record managment issues with this approach and one would hope it gets solved (by a law requiring copies to be sent and the original records to be maintained in state.) 

GovernmentAttic.Org

GovernmentAttic.Org has posted a number of documents it has received via the FOIA.  One item of interest is the Customs and Border Protection Manual.

Slate Article About FBI Records Retention Plan

Alex Heard has this article in Slate about the FBI records retention plan, FBI records in general and his quest for historical records via the FOIA.  By the way, I'm quoted on page two of the article.

Updated Tennessee Open Records Law

According to this report, Tennessee has an updated public records law.  The interesting thing about this law is that it specifically lays out the responsibility of the ombudsman.

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.