The FOIA blog

Comey Memo Ruled Exempt From FOIA - 7A

Judge James Boasberg of the United States District Court for the District of Columbia has ruled that the memos written by former FBI Director James Comey are currently exempt from release under the FOIA because their release would compromise and ongoing investigation.  Politico has this on the decision and the decision can be found here: Download Comeymemo

For those new to the FOIA - this means that the government demonstrated that the memos are being used in an ongoing investigation (that being headed by Robert Mueller).  It doesn't mean that the memos will never be released - once the investigation is complete and the harm to the investigation is over, the exemption used by the government (7A) will no longer be utilized to withhold the material and it can be processed and much of it can be released (other exemptions may apply) pursuant to a new request and/or litigation case.

DOJ Says Comey Memos Part of Ongoing Litigation

Late Friday the DOJ filed its motion for summary judgment on the "Comey Memos" arguing that the documents were part of an ongoing criminal proceeding and protected under the FOIA pursuant to Exemption 7A.  In line with the Maydak ruling, DOJ said other exemptions such as 1, 3, 6 and 7(C) would also apply to the documents.  CNN has more here.

Fugitives Denied Tax Records By Ninth Circuit

The Ninth Circuit Court of Appeals has affirmed a district court decision that denied records made on behalf of two U.S. citizens who have fled to China instead of defending themselves against criminal charges filed by the IRS.  The case concerns Steven and Linda Su Cheung who the IRS filed a criminal complaint against.  Rather than defend themselves, they fled to what the U.S. government believes is China -- a country the U.S. doesn't have an extradition treaty with.  The Cheungs than had their attorney file a FOIA request for the records the IRS has.  The IRS denied the records, and a lawsuit followed.

The case proceeded through the courts, and the 9th Circuit affirmed the district court's finding that the release of the documents are exempt pursuant to FOIA Exemptions 3 and 7(A).  The reason for the withholding is largely the fact that rather than stay and defend themselves the Cheungs fled and then tried to use the FOIA to find out what the government had on them.  The two exemptions were used to prevent this from happening.  As the court stated, if the Cheungs had stayed and fought the charges, they'd get the information in the documents through either criminal discovery and then FOIA. 

Labor Department Wins 7(A) Case

The United States Department of Labor has been granted summary judgment in a FOIA case brought against it by a Labor Union and its business manager.  Labor withheld the records pursuant to Exemption 7(A) because it contended that there is a criminal investigation of both the Union and the business manager.  Federal District Court Judge Ruben Castillo of the Northern District of Illinois agreed with the Labor Department and said the documents could be withheld pursuant to Exemption 7(A). 

SEC Exempt From FOIA -- Not So Fast According to Washington Post

Zach Goldfarb of the Washington Post saysthe SEC isn't nearly as exempt from FOIA as the Fox Business Network reporting states.  Goldfarb says that the new provision only "exempts the SEC from disclosing records derived from 'surveillance, risk assessments, or other regulatory and oversight activities,' this only concerns documents obtained through examinations of broker-dealers and investment advisers -- periodic or targeted reviews of financial firms." 

Goldfarb states that "Information from investigations into potential wrongdoing has never been obtainable through FOIA."  He is wrong in this assertion.  Information from OPEN investigations has been withholdable pursuant to FOIA exemption 7(A) (as it is by all federal law enforcement agencies-not just the SEC).  However, once an investigation is closed, the information may be released pursuant to a FOIA request -- unless it is covered by another FOIA exemption. 

It is unclear if the SEC plans to utilize its new statutory authority to protect information received from brokers, investment advisers and other individuals in closed law enforcement investigations that have to do with the SEC's job as enforcers, not regulators; the Fox Business News report made it appear that the SEC, through its attorneys in litigation, plans to do just that.  More clarification from the SEC is needed. 

Mark Cuban Files FOIA Lawsuit

Mark Cuban, who has been sued by the SEC for insider trading, has filed a lawsuit over his FOIA requests for records pertaining to the SEC's investigations of him.

I haven't seen the lawsuit yet (his lawyers reportedly sent a copy to the AP but I couldn't find a link to it), but my take is that the SEC will argue these records are part of the ongoing investigation of Cuban and are protectible at this time pursuant to FOIA exemption 7(A).  I'm also not sure why he isn't entitled to these records under criminal discovery under the case the SEC has against him. 

Interesting Decision in Exemption 5 and 7(A) Case

In a case before U.S. District Court Judge for the District of Columbia Colleen Kollar-Kotelly, it has been held that the government has failed to establish that Exemption 5 and 7(A) apply for withholding certain documents.

It wasn't a complete loss for the government, as the court found many of the documents to be exempt from the FOIA.  However, one exemption 5 document that the State Department was attempting to withhold was found to be post-decisional.  Further, the Department of Homeland Security's failure to establish a pending or prospective enforcement proceedings led the court to rule that it didn't establish that exemption 7(A) applied to 86 pages of material.  The court further found that State and Homeland Security did not adequately explain why it couldn't segregate information on the withheld pages.

The agencies will now attempt to further explain segregability and Homeland Security will take another crack at justifying its use of exemption 7(A).

IRS Can Withhold Third Party Contact Names and Information From Audit

Federal District Judge for the District of Columbia Rosemary M. Collyer has ruled that the Internal Revenue Service ("IRS") can withhold the names of third parties contacted in an audit as well as notes taken during the interviews and the information they provided to the IRS.  The judge held that the names were withholdable pursuant to FOIA Exemption 7(C).  The notes and information provided by the third parties were held withholdable pursuant to Exemption 7(A). 

As Exemption 7(A) is temporal and only lasts as long as the audit or subsequent prosecution (if there is one) is open, these documents may be subject to further requests in the future.