The FOIA blog

DOD Attack on the FOIA?

The Defense authorization bill working its way through Congress has set off alarm bills in the FOIA community as a draft of the bill rewrites FOIA Exemption 2 and overrides a 2011 Supreme Court decision that limited the Exemption.  Politico has this on the issue.

Since the Supreme Court limited the use of Exemption 2 in 2011 there has been little legislative action to protect information that may not be protected by other exemptions.  Agencies have broadened the use of Exemption 7(e) and (f), but those exemptions may not always be applicable to information formerly protected by Exemption 2.  While there may be some agreement that there are a few areas of information that should be protected, it is definitely not on the language in the draft authorization bill.  Further, the committees of Congress with FOIA jurisdiction (that are both currently dealing with amendments to the FOIA) should be the committees that bring forth the bill.  It should not be part of a Defense budget bill.

CMS Denies ACA Computer Security FOIA Request

Federal News Radio reports on the CMS denying an Associated Press Reporter's FOIA request for records pertaining to documents about the kinds of security software and computer systems behind the federally funded HealthCare.gov.  The agency denied the records using a novel claim that release of the records because doing so could leave the site vulnerable to hackers thus causing an unwarranted risk to consumer's private information.

Less than five years ago, this request would simply have been denied pursuant to FOIA Exemption 2.  However, the Supreme Court limited the use of Exemption 2 in Milner v. Navy in 2011 and there has been no attempt to add legislative language that would protect information that would truly cause a harm to internal government operations since.  Agencies have had to use extreme measures to protect information they are concerned about and by doing so the argument has shifted away from the real issues.  For instance in this case, would the release of the records really create a vulnerability to hackers is the issue.  However, the argument made by the government creates a secondary issue that is just as important - if hackers get in, would it allow for the release of personal privacy information otherwise protected pursuant to Exemption 6?

By failing to provide a real legislative fix, both Congress and the Administration has made it much harder for both requesters and FOIA Offices to have workable rules to get or deny information under the FOIA.  Agencies are forced to make arguments that come out of law school blue book exam and requesters are then forced to push back on those arguments in much the same way.

In Camera Review Ordered on Videos of Guantanamo Prisoners

Judge John D. Bates of the United States District Court for the District of Columbia has ordered three videos to be submitted to his chambers for an in camera review after the Defense Department failed to adequately justify exemptions used to withhold the videos.  Judge Bates gave the Defense Department three attempts to explain the withholdings but found each attempt incomplete.  In their last attempt, the Defense Department even tried to use an Exemption 2 that has been found to be not covered by the Exemption by the Supreme Court.  The opinion can be found here and Josh Gerstein of Politico has this detailed analysis with some background on the case here.

No New Exemptions

United States District Court Judge for the District of Columbia Gladys Kessler has told the FBI that it may not use new exemptions to withhold material it originally protected pursuant to Exemption 2 when it originally withheld the material prior to litigation.  The case concerns documents relating to the Jonestown Massacre and the litigation was filed a decade ago -- the processing of the documents occurred even longer ago than that.

Further, the Court cut the time the FBI had to re-examine documents pursuant to Exemptions 1, 2 and a sealing order in half.  The FBI sought a full year, the Court gave them six months.

DOJ Guidance on Exemption 2

The Department of Justice has issued guidance on Exemption 2 in light of the Supreme Court decision in Milner v. Department of the Navy.  The lengthy guidance found here, basically discusses the holding of Milner, what can now be withheld under Exemption 2, and what can possibly be used to withhold material that used to be withheld pursuant to that Exemption before the Supreme Court issued its ruling.

Interestingly, there is no guidance on how to determine whether disclosure of the material is appropriate under the President's much ignored transparency memorandum.  Release of a document should always be the first thing considered pursuant to a FOIA request.

TSA May Withhold Whole Body Scan Images

U.S. District Court Judge Ricardo M. Urbina for the Federal District Court in the District of Columbia has ruled that the Transportation Safety Administration may withhold whole body scan images and certain training materials pursuant to Exemption 2.  The entire opinion may be found here.  Plaintiff, Electronic Privacy Information Center has stated that it is reviewing its options on appeal.  Further, the high 2 Exemption found to be the basis for the redaction is currently under review by the Supreme Court, with a decision expected by June at the latest.

More on this from CNN.

Supreme Court Hears Exemption 2 Case

The Supreme Court heard the case of Milner v. Department of the Navy yesterday.  According to this Associated Press report from the Washington Post, the Court questioned the government's broad use of exemption 2.

Media Groups Weigh In On Exemption 2 At Supreme Court

Reporter's Committee for Freedom of the Press details the recently filed brief of media organizations at the Supreme court on behalf of the appellant who was denied information on munition storage near his home in Oregon.  The government withheld the material by invoking the high-2 exemption, which was upheld by the Ninth Circuit Court of Appeals.  The case is now pending at the Supreme Court.

Gitmo Prisoner Photos Ordered Release

Judge John D. Bates of the United States District Court for the District of Columbia has ordered the release of photos of certain prisoners being held at Gitmo.  Judge Bates ruled that the government did not adequately demonstrate that exemption 6 (privacy) protected these photos.  Judge Bates did rule that the government's search, except for one instance, was adequate and that parts of the documents were protected pursuant to Exemptions 1 and 2.  The Court deferred ruling on some of the documents the government is attempting to withhold pursuant to Exemption 1 until the government could provide a third declaration--the final declaration the Court said it will allow before ruling on the matter.

Josh Gerstein of Politico has more here.

Supreme Court Takes Exemption 2 Case

The Supreme Court has granted cert to Milner v. Department of the Navy, which involves a FOIA decision by the Ninth Circuit Court of Appeals and FOIA exemption 2.  Milner sought information about the distance at which Naval munitions stored at a base on an island off the coast of Washington would be liable to explode.  The Navy invoked exemption 2 and both the District Court and Ninth Circuit Court of Appeals approved the exemption to withhold the material.   

The question presented on this case per the Supreme Court filing of Milner is "whether 5 U.S.C. § 552(b)(2), which allows a government agency to keep secret only documents related solely to the internal personnel rules and practices of an agency, must be strictly construed to preclude the "High 2" expansion created by some circuits but rejected by others."