The FOIA blog

DOJ Ordered to Release Names of Corporate Compliance Monitor Nominees

Reporters Committee for the Freedom of the Press has won an case it brought against the Criminal Division of the Department of Justice (DOJ) on behalf of reporter Dylan Tokar.  DOJ tried to withhold, among other things, the names of those nominated by companies to be their corporate compliance monitors.  DOJ, who gets to pick the actual monitor, withheld the names of the nominees pursuant to Exemptions 6 and 7(C).  However, the Court found that while there was a privacy interest in the names of these individuals they were outweighed by the public interest in the release of the information.  It's an interesting opinion - it also delves into an agency's duty to liberally construe a FOIA request (here the DOJ tried to argue that it the narrowed request sought information not documents but the Court would have none of that argument.)  The opinion can be found here.

Court Issues Glomar Decision

Judge Colleen Kollar Kotelly of the District of Columbia District Court has issued a decision explaining why the FBI's use of a Glomar was not substantiated by its declarations.  The FBI will get another opportunity to either defend its use of the Glomar again consistent with the decision or drop its Glomar and either release records or withhold them under one of the privacy exemptions.  The decision is a very good analysis of how agencies can and cannot properly use the Glomar response in requests seeking information on a third party.

The decision can be found here: Download Glomar

 

Categorical Denial of Privacy Exemption Remanded

The U.S. Court of Appeals for the District of Columbia Circuit has remanded a case in which the Bureau of Prisons attempted to categorically deny many different types of individuals names and identities under the privacy exemptions of the FOIA (6 and 7(c)).  The Court ruled that the categorical denials were too broad and the were not sufficiently weighed against the public interest.  The case will go back to the District Court where the government will have to provide a much more detailed Vaughn index and the Court will have to weigh the privacy interests against the public interests in disclosure. 

FBI Ordered to Release Documents Concerning Actor George Hamilton

In a case that demonstrates why the Department of Justice doesn't understand when its knee jerk use of the privacy exemptions are improper, the FBI has been ordered to release certain information pertaining to the FBI's investigation of actor George Hamilton done at the behast of then President Lyndon Baines Johnson.  LBJ's daughter was dating the actor at the time (1966) and the FBI insisted it was withholding the material to protect the actor's privacy.  The Court's lengthy opinion, however, shows how the public interest in a ill intentioned government investigation outweighs the small amount of privacy Hamilton may have in the records.  It's a very interesting opinion - and that says a lot for a FOIA opinion.  Another interesting tidbit is that the case was prosecuted by law students at Villanova.

Update:  The Philadelphia Inquirer has a story on this matter, which includes a quote from the requester.  The only thing I have to add is that it is very unlikely that the President or anyone appointed by the President had anything to do with the decision to withhold Hamilton's name, these decisions are usually made by the FOIA offices involved and prosecuted by the U.S. Attorneys Office involved.

 

Mug Shots Still Releasable in Sixth Circuit

Reporter's Committee for Freedom of the Press reports on the Detroit Free Press and its latest mug shot victory.  The Sixth Circuit is currently the only one that has held that mug shots are not protected under the FOIA- the government could choose to appeal this in an attempt to get the Supreme Court to finally decide the issue once and for all. 

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.

DOJ Categorical Denial Rejected By Court

Judge Gladys Kessler of the United States District Court for the District of Columbia has rejected the Department of Justice's argument that it could wholly protect investigative files of the FBI and Criminal Division on an investigation of Alaskan Congressman Don Young (R-Alaska).

The request was made by Citizens for Responsibility and Ethics in Washington ("CREW") [Ed. note -- I do legal work for CREW but was not involved in this case], and sought records of the investigation.  The investigation was specifically sought by Congress after a specific earmark was put into the legislation after it passed both houses of Congress but before it was signed by the President.  A large beneficiary of the earmark had held a fundraiser for Young at the time the legislation was moving through Congress.

The Department of Justice categorically denied the request based on the privacy exemptions (6 and 7(C)) claiming it would violate Young's privacy.  However, the court found that the public interest in the records outweighed Young's privacy interest and the government needs to process the records and file a Vaughn index if it wants to withhold any of the specific records in the file pursuant to Exemptions 6 and 7(C).  In other words, the government can not categorically deny the files; it must process them.

Politico has a link to the opinion and a summary of the case here.

Update:  Here's the AP story on the case that ran in the Washington Post.

Ninth Circuit Remands Case for Inadequate Declarations

The Ninth Circuit Court of Appeals has remanded a case against the United States Trade Representative because it found that the government's declarations failed to provide enough information to warrant the finding of summary judgment granted by the district court.  Specifically, the court found that the declarations did not adequately describe the search for responsive records, how the withheld records met the thresshold of Exemption 5 and the Exemption 6 balancing test. 

One of the judges on the three-judge panel, Judge Jay Bybee dissented on the search issue stating he would have affirmed for the government.  However, he joined in with the other two judges on the justification of Exemptions 5 and 6 on the remand.

Ninth Circuit Rules on Privacy Case

The 9th Circuit Court of Appeals has ruled that the facts in the record do not allow for the withholding of names of whistleblowers pursuant to Exemption 6 in this case.  The case concerns communications sent to HUD about violations of the Real Estate Settlement Procedures act by Prudential Locations Real Estate.  Prudential made a FOIA request to find out who was providing this information to the government.  HUD withheld identifying information as to the third parties providing the material and HUD filed suit.  The government won at the district court, but Prudential filed an appeal.

The 9th Circuit ruled that the outcome of the case would depend on who provided the information to HUD.  In other words, would that person or persons be stigmatized by being publicly revealed.  The court said if it was a Prudential employee then they would likely be stigmatized and it would lead to a violation of their privacy; but if it was a competitor there would likely be no problem with releasing the identify of the individual.  Unfortunately, the government failed to provide that information on the record and the case was remanded to the district court for further development of the record consistent with the appellate decision.

 

Government Wins on Enhanced Interrogation Technique FOIA Suit

Politico reports that the Government has won summary judgment on a lawsuit brought by the American Civil Liberties Union on documents concerning enhanced interrogation techniques used by the Bush administration.  After releasing and segregating certain documents, United States District Judge for the District of Columbia Rosemary Collyer said the government's use of Exemptions 1, 3, 5 and 6 were proper.

Among the Exemption 5 privileges used was the presidential communications privilege which protects material going to the President and his top advisors.