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.

 

Thursday FOIA News: Education Sued; DOJ Loses Glomar Case

Here's some FOIA news on the Thursday before Memorial Day.

The Department of Education has been sued by a consumer group over the agency's refusal to hand over details of its private debt collection program according to insidearm.com.  For those interested, the FOIA decision against FMS discussed in the article can be found here. 

And the Department of Justice has lost its fight to use a glomar on a confidential source where the fact that the source was used was acknowledged in the underlying criminal case.  The government will now have to justify its use of Exemption 7(C) to protect the actual records of the source.

 

 

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. 

More on 10th Circuit Mug Shot Opinion

Politico, the Wall Street Journal and the Tulsa World (Tulsa World is the requester in the case) all have more on the 10th Circuit's decision that the US Marshals Service doesn't have to release mug shots.

I think the key is the issue of whether or not there is a privacy interest in the mug shots and just how big it is.  The Sixth Circuit says there is no privacy interest, the Tenth and Eleventh say there is.  Tulsa World argued that since many states, including Oklahoma, released mug shots they should be released at the federal level -- I believe this could be taken one step farther.  Since many states (and the Sixth Circuit) release mug shot photos, there is no expectation of privacy when they are taken.  A mug shot photo taken outside of the Sixth Circuit could be released via FOIA if that photo is requested by someone with possible jurisdiction in the Sixth Circuit. 

There are still a number of Circuits that have not ruled on the mug shot photos, so the issue is alive and well

Tenth Circuit Rules Mug Shots Exempt From Disclosure

The Tenth Circuit has agreed with the recent decision of the Eleventh Circuit in finding that mug shots taken by the U.S. Marshals Service are exempt from disclosure pursuant to the FOIA.  The Sixth Circuit has ruled that mug shots are not exempt under the FOIA and must be released.  The Supreme Court recently decided not to hear the Eleventh Circuit's decision. 

The Tenth Circuit decision can be found here.

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.

On Reconsideration, DEA Found to Have Publicly Revealed Informant

United States District Court Judge for the District of Columbia Colleen Kollar-Kotelly has found, on a reconsideration motion, that the Drug Enforcement Administration (DEA) had named a third party as a DEA informant and therefore, the DEA needed to release information that was released in open court that is in the requested material.  In re-examining the transcripts of the requester's criminal trial, the court additionally found that because the DEA said the individual was an informant in court it could not use the glomar exclusion at Section 552(c)(2) of the FOIA to neither confirm nor deny his informant status.