The FOIA blog

FBI FOIA Suit Reveals Use of Grand Juries in Clinton Email Investigation

Politico has this on the FBI's recent filing in a FOIA suit -- in the declaration the FBI details the steps it took to locate emails sent from non government email accounts by former Secretary of State Hillary Clinton.

The amazing thing is the detail about federal grand juries that are provided by the FBI.  In most FOIA cases, grand jury information is highly redacted and exempt pursuant to FOIA exemption 3 to protect the secrecy of the grand jury.  Here, however, the FBI describes its use of grand juries in its investigation of the emails as well as its later use of grand juries in another case - this one likely that into the investigation of former Rep. Anthony Weiner. 

It's not apparent the effect this will have in future FOIA litigation but what is striking about this is the level of detail about the use of grand juries provided by the FBI, which is not something usually seen in a FOIA case in a public declaration.

FBI Loses Exemption 3 Pen Register Appeal

Courthouse News has this on the D.C. Circuits clarification of what can actually be withheld concerning Pen Registers pursuant to Exemption 3 of the FOIA.  The Court ruled that only the actual pen register order may be withheld pursuant to Exemption 3 of the FOIA - the FBI had attempted to withhold information about the pen register under the Exemption as well as the order itself.

New DOD Exemption 3 Statute

Blogger and author Bob McCarty made a FOIA request to the Army for an Army Handbook entitled "Inside the Wire Threat - Afghanistan."  Mr. McCarty has publicized this request in his blog.  The handbook was publicized by Gen. John Allen during Senate testimony in March of 2012.  The request was eventually referred to the Department of Defense's FOIA Office ("DOD") because the Army believed that it contained Critical Infrastructure Security Information and that information was covered by 10 USC Section 130e, which was created in the 2012 National Defense Authorization Act.  This was largely in response to the Milner decision which cut back the use of Exemption 2 for this material.

Under the statute, DOD gave McCarty the opportunity to show why the public interest in the material would outweigh any interests in withholding the material.  Instead of responding to DOD, Mr. McCarty merely threw up his hands over the "hoops" he had to jump through and cancelled his request.

James Hogan, the DOD offical who asked Mr. McCarty for his input has stated to the FOIA blog that

    "The National Defense Authorization Act (NDAA) for Fiscal Year 2012 created two
    DoD-specific Exemption 3 statutes – 10 U.S.C. § 130e, which concerns critical
    infrastructure security information, and 10 U.S. C. § 2254a, which concerns data
    files of the military flight operations quality assurance system.  According to
    these statutes, the authority to exempt information from release to the public
    is provided to the Secretary of Defense, who may delegate this authority to the
    Director of Administration and Management.  This authority has been delegated,
    and the DoD has published its procedures for exempting this information on the
    Defense Freedom of Information Policy Office web site here." 

Hogan says they are trying to make the process as transparent as possible and asks for those interested to contact the Department with any comments.

This statutue and its input on the public interest in non-privacy information is relatively novel for the FOIA.  All requesters who make requests should really give the DOD input on the information they are asking for under the terms of the statute, otherwise the DOD will be free to just withhold the information.  Further, without requester input, no administrative appeals or litigation decisions will be available.

State Department Fights Transparency

Courthouse News reports that the State Department has been allowed to withhold material concerning a discussion pertaining to a letter written by Plaintiff Arthur Houghton about the Department's Cultural Property Advisory Committee.  United States District Court for the District of Columbia Judge Amy Berman found the material properly withheld pursuant to Exemption 3 via 19 U.S.C. Section 2605(h).  However, Judge Berman found the State Department did not adequately explain its search for other records and order further searches and briefing on that issue.  The opinion can be found here.

NIH Ordered To Release Waiver Determinations

United States District Court Magistrate Judge for the Southern District of New York Gabriel W. Gorenstein has ordered the National Institutes of Health ("NIH") to release financial interests and relationship information contained on waiver determinations for Special Government Employees who serve on NIH advisory committees.  NIH had argued that this information was protected pursuant to Exemption 6 of the FOIA, however the court ruled that the privacy interests of the individuals in this material was outweighed by the public interest in detecting undue influence on the function of government. 

The Court did rule in NIH's favor on another group of documents that came from Office of Government Form 450 and are protected pursuant to Exemption 3 pursuant to 5 U.S.C. App'x 4 Section 107 and 5 C.F.R. Section 2634.901.

The opinion can be found Download SeifeOpinion.

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. 

Government Files Reply Brief in Bin Laden Death Photo Litigation

The blog of the Legal Times has the government's reply brief in the Osama Bin Laden death photo's FOIA litigation. 

The government is saying that the records are classified and are properly withheld pursuant to FOIA exemptions 1 and 3.  Judicial Watch, the plaintiff, will file its reply (they cross-moved for summary judgment and get another opportunity to respond) next month.  Once that happens, the district court will issue an opinion.

IRS Wins on Request for Pension Plan Data

According to CCH, the IRS has won a court case in the U.S. Court of Appeals for the 10th Circuit where the requesters were seeking information on an employer's participation in a pension plan.  The basic reason for the victory is that he information sought was tax return information, and the IRS Exemption under the IRS Tax Code Section 6103 is very broad; enabling this type of information to be withheld as long as it is "tax return information."

As the debate about overhauling the tax code sharpens, open record advocates should take the opportunity to have Congress discuss narrowing the broad exemption that the IRS presently has for anything considered "tax return information."

Update on Bin Laden Death Photos

Josh Gerstein of Politico has an update on the litigation brought against the goverment for the death photos of Osama Bin Laden.  The government is saying that the records are in the possession of the CIA and as the records are a classified intelligence activity, the CIA may withhold the material pursuant to FOIA Exemptions 1 and 3.

I have consistently stated that if the government made this argument it would be difficult for requesters to overcome.  The requesters opposition is due on October 24, 2011.

CIA Drone Attacks Protected Under FOIA

Judge Rosemary Collyer of the United States District Court for the District of Columbia has ruled that the fact of whether or not the CIA has used drones for targeted killings and attacks is a CIA intelligence source and/or method and is therefore protected pursuant to FOIA Exemptions 1 and 3.  The Court further ruled that then CIA Director Leon Pannetta's public statements did not acknowledge the existence of the records, if they exist.