Records Subject to FOIA What does it mean for an agency to be “in control” of a record? • Court will employ “totality of circumstances” test using the following • factors: 1. “the intent of the document’s creator to retain or relinquish control over the records; 2. the ability of the agency to use and dispose of the record as it sees fit; 3. the extent to which agency personnel have read or relied upon the document; and 4. the degree to which the document was integrated into the agency’s record system or files. The third factor is “decisive” and “most important factor.” Tax Analysts v. Dep’t of Justice, 845 F.2d 1060, 1069 (D.C.C. Cir. 1988); Physicians Comm. for Responsible Med. v. United States Dept. of Agric., 316 F Supp 3d 1, 10 (DDC 2018) Ownership is not the same as control. Judicial Watch, Inc. v. Fed. Hous. Fin. • Agency, 646 F.3d 924, 927 (DCC 2011)
Make a Request • Now that we know: – What agencies are subject to FOIA; – Who can request for records under FOIA; and – What records are subject to FOIA, • WE ARE ALMOST READY TO MAKE A REQUEST!
Making a FOIA Request “Each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A).
Making a FOIA Request When does a request “reasonably describe” the records sought? When an “agency is able to determine precisely what records are • being requested.” Yeager v. Drug Enforcement Admin., 678 F2d 315, 326 (DC Cir 1982); and When it allows “a professional employee of the agency who [is] • familiar with the subject area of the request to locate the record with a reasonable amount of effort.” Truitt v. Dep’t of State, 897 F2d 540, 545 n. 36 (DCC 1990) (quoting H.R. Rep. No. 93-876, 93d Cong., 2d Sess. At 6 (1974), reprinted in 1974 U.S.C.C.A.N. 6267, 6271).
Making a FOIA Request Examples of when a request “reasonably describes” the records sought: Requester asked the CIA for all records that “mention” Nelson Mandela. • CIA said the request did not reasonably describe records. DC Circuit disagreed, stating, “the subject of [the] request is the entirety of each document that mentions Mandela, even if such references are fleeting and tangential. So compliance should involve virtually no guesswork: A record is responsive if and only if it contains Mandela’s name (or those of his three listed aliases) or any descriptor obviously referring to him.” Shapiro v. Cent. Intelligence Agency, 170 F.Supp.3d 147, 154 (DDC 2016).
Making a FOIA Request Examples of when a request fails to “reasonably describe” the records sought: Requests for records “that refer or relate to the following [topics] in any • way.” Too vague and “extraordinarily overbroad according to the court in Freedom Watch v. CIA, 895 F.Supp.2d 221, 223 (D.D.C. 2012); A request for records ”that pertain in any form or sort to [the plaintiff” was • “overly broad.” Latham v. U.S. Dep’t of Justice, 658 F.Supp.2d 155, 161 (D.D.C. 2009); A request from a group of people that sought records “concern[ing]”them • and did not offer any further information was too broad. Hunt v. Commodity Futures Trading Comm’n, 484 F.Supp. 47, 51 (D.D.C. 1979).
Step 1: Subject(s) of Request Generate a list of search terms for the subject(s). • Determine a date range (if appropriate). • Generate a list of the types of records you want (e.g., • documents, video audio, photos, emails, text messages, incident logs, etc.). You can call the agency if you need help drafting your • request.
Make a Request: Step Two • Search for records already disclosed • Good resource: https://www.foia.gov/#learn- more • You can also search on websites (like Muckrock)
Make a Request: Step Three • Identify Agency or Agencies • Over 100 agencies • See Handout pages 52-54 for a list of select agencies • Go to FOIA.gov for additional assistance • Identify contact information for the agency (usually there is a foia section on the agencies website. If in doubt, call the agency and ask)
Step Four: Fee Waivers You may have to pay to receive records. Depending on who • is requesting and the purpose of the request, your fees may be waived or reduced. Under FOIA, “fees shall be limited to reasonable standard • charges for document duplication when records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research; or a representative of the news media;” 5 U.S.C. 552(a)(4)(A)(ii)(II).
Fee Waivers 5 U.S.C. 552(a)(4)(A)(III): “Documents shall be furnished • without any charge or at a charge reduced below the fees established under clause (ii) if disclosure of the information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.”
Fee Waivers
Fee Waivers In your request, be sure to include your request for a fee • reduction/waiver and the reasons why you should receive a fee reduction/waiver. A few more things to know about fees under FOIA: • – If an agency failed to comply with timelines dictated by FOIA, the agency may have waived its right to collect fees from you. There are several exceptions to this rule. Make sure to look at how the agency is determining the fees you owe. – – In your request, ask the agency to notify you if the anticipated cost will exceed a certain amount.
Step 5: Format and Processing Stating the statutory basis of the request • What format do you want the records in? PDF? What type of video/audio • files? Etc. You can also request that records simply be released in their “native file – format.” Timeline: • “ordinary” request: Agency must make a “determination” within 20 days of the – date the request was received by the “appropriate component of the agency.” 5 U.S.C. 552(a)(6)(A). A “determination” occurs when an agency has completed it’s search, reviewed – the results, and communicated to the requester whether records will be released or withheld. If records are withheld, the agency must cite the legal justification for withholding. More on this later… An agency can get an extension for “unusual circumstances.” – ”Expedited processing”: determination occurs under 20 days. Usually it’s – within 10 days. Each agency/department publishes their own timeline the Code of Federal Regulations. Justification of redactions or exempt material. – Certification of Identity/Privacy Waiver •
Step 6: Draft and Submit • Draft request, keeping in mind the requirements (e.g., “reasonably describe records sought”) • Submit to the appropriate agency (see handout p. 52- 54) • Keep track of when you submitted. • You may be able to submit online, email, or regular mail. • If regular mail, consider sending the request certified. • Make copies of all of everything you’ve sent.
Examples of FOIA Requests
Handout p. 107
Handout p. 109 FOIA Office, U.S. Immigration and Customs Enforcement March 19, 2018 ACLU Page2 In particular, we request disclosure ofrecords containing the following information: A M E R I C A N CIVIL L I B E R T I E S U N I O N F O U N D A T I O N 1. Any contracts, addenda, attachments, memoranda of understanding, amendments, Northern modifications, or other agreements made and/or negotiated pursuant to the Request California for Quotation No. 70CDCR18Q00000005, "Request for Quote for Access to License Plate Reader (LPR) Database," issued by ICE/Detention Compliance & Removals on December 15, 2017 (the "Request for Quotation"), along with March 19, 2018 communications related to such contracts, memoranda of understanding, or other agreements; VIA U.S. POSTAL SERVICE, CERTIFIED MAIL RETURN RECEIPT REQUESTED 2. The contract with the vendor that is referenced in the document titled "Privacy Impact Assessment Update for the Acquisition and Use of License Plate Reader VIA EMAIL ICE-FOIA@dhs.gov (LPR) Data from a Commercial Service," DHS/ICE/PIA-039(a), dated December U.S. Immigration and Customs Enforcement 27, 2017 (the "Updated PIA") related to access to a commercial ALPR database, FOIA Office along with all associated communications, addenda, attachments, memoranda of 500 12 th Street, S.W., Stop 5009 understanding, amendments, modifications, or other agreements;2 and Washington, D.C.20536-5009 3. Any contracts, addenda, attachments, memoranda of understanding, Re: Freedom oflnformation ActRequest amendments, modifications, or other agreements made and/or negotiated Expedited Processing Requested pursuant to the Solicitation and Contract Award No. 70CDCR18P00000017, "Access to Commercially Available LPR Database," issued by ICE, along with Attention: communications related to such contracts, memoranda of understanding, or other agreements. 3 I am a staff attorney at the American Civil Liberties Union Foundation of Northern California. I write on behalf of the American Civil Liberties Union of Northern California to II. REQUEST FOR EXPEDITED PROCESSING request records pursuant to the Freedom oflnformation Act ("FOIA"), 5 U.S.C. § 522 et seq., implementing regulations 6 C.F.R. § 5.1 et seq., and any other applicable regulations. We request expedited processing pursuant to 5 U.S.C. § 552(a)(6)(E) and the statute's implementing regulations. There is a "compelling need" for these records, as I. REOUE T FORINFORMATION defined in the statute and regulations, because there is urgency to inform the public The American Civil Liberties Union of Northern California (the "ACLU-NC") hereby concerning actual or alleged Federal Government activity and the request has been made requests disclosure of all records in your possession relating to contracts by and between the U.S. by an organization primarily engaged in disseminating information. See 5 U.S.C. § Immigration and Customs Enforcement ("ICE") and contractors related to Automated License 552(a)(6)(E)(v); 6 C.F.R. §5.5(e)(l)(ii). Plate Reader ("ALPR") systems, databases, and technology. 1 First, the ACLU-NC is a requestor "primarily engaged in disseminating information." 5 1 The term "records" as used herein includes all records or communications preserved in written or electronic form, U.S.C. § 552(a)(6)(E)(v)(II); 6 C.F.R. § 5.5(e)(l)(ii). The ACLU-NC is an affiliate of the including but not limited to: correspondence, documents, data, videotapes, audio tapes, emails, faxes, files, guidance, ACLU, guidelines, evaluations, instructions, analyses, memoranda, agreements, notes, orders, policies, procedures, protocols, a national organization that works to protect civil liberties of all people, including the reports, rules, training manuals, other manuals, or studies. With respect to privacy concerns for members of the safeguarding of the basic constitutional rights to privacy, free expression, and due process public, we will accept copies that are redacted to protect identifying information such as names, social security of law. The ACLU-NC is responsible for serving the population of northern California. numbers, and alien numbers, but we would object to the redaction ofbirthdates and birthplaces that would interfere ACLU-NC staff persons are frequent spokespersons in television and print media and with our ability to determine the ages and countries of origin for members of the public. In addition, we request that make frequent public presentations at meetings and events. The ACLU-NC plans to members of the public whose identifying information is redacted be identified with an alphanumeric code so that analyze and disseminate to the public the information gathered through this Request at no multiple records related to the same individual will be recognized as such. This redaction agreement does not apply to cost, and the records are not sought for any commercial purpose. identifying information such as names and badge numbers for federal agents. American Civil Liberties Union Foundation of Northern California Dissemination of information about actual or alleged governmental activity is a EXECUTIVE DIRECTOR Abdi Soltani• BOARD CHAIR Magan Pritam Ray critical and substantial component of the ACLU's mission and work. The ACLU-NC SAN FRANCISCO OFFICE: 39 Drumm St . San Francisco, CA 94111 • FRESNO OFFICE: PO Box 188 Fresno, CA 93707 TEL actively (415) 621-2493 • FAX (415) 255-1478 • TTY (415) 863-7832 • W W W . A C L U N C. O R G 2 See https://www.dhs.gov/sites/default/files/publications/privacy-pia-ice-lpr-january2018.pdf. 3 https://www.fbo.gov/index?s=opportunity&mode=form&id= 5629706f5736d22bd174b l l 965f5ac4c&tab=core&_cv iew=O.
FOIA Office, US. Immigration and Customs Eriforcement FOJA Office, U.S. Immigration and Customs Enforcement March 19, 2018 March 19, 2018 Page4 Page3 inform an urgent ongoing debate about the use of ALPR tracking by governments agencies, and disseminates and frequently garners extensive media coverage of the information it obtains about specifically seeks to inform the public's understanding of how federal agencies utilize ALPR actual or alleged government activity through FOIA and California's statutory counterpart, the data in immigration enforcement. California Public Records Act. It does so through a heavily visited website (averaging between 10,000 and 20,000 visitors per week) and a paper newsletter distributed to its members, who now III. APPLICATION FOR WAIYER OR LIMITATION OF FEES number over 170,000. In the past, FOIA requests, litigation over FOIA responses, and information obtained by the ACLU-NC through FOIA about the federal government's A. Release of the records is in the public interest. immigration enforcement, ethnic and racial profiling, and detention operations have been the subject of articles on the ACLU-NC's website. 4 They have also garnered coverage by other news We request a waiver of search, review, and reproduction fees on the grounds that media. 5 ACLU-NC staff persons are frequent spokespersons in television and print media and disclosure of the requested records is in the public interest because it is likely to contribute make frequent public presentations at meetings and events. significantly to the public understanding of the United States government's operations or activities and is not primarily in the commercial interest of the requester. 5 U.S.C. § Courts have found that the ACLU and similar organizations are "primarily engaged in 552(a)(4)(A)(iii); 6 C.F.R. § 5.1l(k). disseminating information" for purposes of expedited processing under FOIA. See ACLU v. Dep't of Justice, 321 F. Supp. 2d 24, 30 n.5 (D.D.C. 2004) (finding that a non-profit, public As discussed above, numerous news accounts reflect the considerable public interest in interest group that "gathers information of potential interest to a segment of the public, uses its the requested records. Given the ongoing and widespread media attention to this issue, the editorial skills to turn the raw material into a distinct work, and distributes that work to an records sought by the Request will significantly contribute to the public understanding of the audience" is "primarily engaged in disseminating information" (internal citation omitted)); see operations and activities of the Department of Homeland Security and ICE, and will be of also Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246,260 (D.D.C. interest to a broad interest. See 6 C.F.R. § 5.1 l(k)(l)(i), (k)(2)(iii). In addition, disclosure is not 2005) (finding Leadership Conference-whose mission is to "disseminate[] information in the ACLU-NC's commercial interest. As described above, any information disclosed as a part regarding civil rights and voting rights to educate the public [and] promote effective civil rights of this FOIA Request will be available to the public at no cost. Thus, a fee waiver would fulfill laws"-to be "primarily engaged in the dissemination ofinformation"). Congress's legislative intent in amending FOIA. See Judicial Watch Inc. v. Rossotti, 326 F.3d 1309, 1312 (D.C. Cir. 2003) ("Congress amended FOIA to ensure that it be 'liberally construed Second, there is urgency to inform the public concerning actual or alleged federal in favor of waivers for noncommercial requesters."') (citation omitted); OPEN Government Act government activity. Recent news articles reflect the significant media and public interest in the of 2007, Pub. L. No. 110-175, § 2, 121 Stat. 2524 (finding that "disclosure, not secrecy, is the use of ALPR technology by governments. See Russel Brandom, ICE Is About to Start Tracking dominant objective of the Act," quoting Dep 't of Air Force v. Rose, 425 U.S. 352,361 (1992)). License Plates Across the US, THE VERGE (Jan. 26, 2018), https://www.theverge.com/2018/1/26/16932350/ice-immigration-customs-license-plate B. The ACLU-NC qualifies as a representative of the news media. recognition-contract-vigilant-solutions; Tal Kopan, ICE Inks Contract for Access to License Plate Database, CNN(Jan. 26, 2018), https://www.cnn.com/2018/01/26/politics/ice-license A waiver of search and review fees is warranted because the ACLU-NC qualifies as a plate-readers/index.html; Chantal Da Silva, City Refuses to Let Ice Track License Plates With "representative of the news media" and the requested records are not sought for commercial use. 'Digital Deportation Machine', NEWSWEEK (Feb. 14, 2018), http://www.newsweek.com/city 5 U.S.C. § 552(a)(4)(A)(ii); see also 6 C.F.R. §§ 5.1 l(b)(6), (k)(2)(iii). Accordingly, fees refuses-let-ice-track-licenses-places-digital-deportation-machine-806845. This request will associated with the processing of this request should be "limited to reasonable standard charges for document duplication." The ACLU-NC meets the statutory and regulatory definitions of a "representative of the news media" because it is an "entity that gathers information of potential 4 See, e.g., ht tps://www.acl unc. org/ne s/aclu- northern -cal iforn ia-files- demands -doc u ments-implementatioo-trump s- musl im-ban (FOIA request for CBP detention and deportation records); https: // www. aclunc .org/news/aclu northern- interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct ca li fornia-files-l aws uit-demand ing-documents-imp lement ation-trumps-mus lim-ban (lawsuit challenging government's work, and distributes that work to an audience." 5 U.S.C. § 552(a)(4)(A)(ii)(II); see also Nat'! response to FOIA request for CBP records) https://www .aclunc .or g/news /aclu -seeks-records Sec. Archive v. Dep't of Def, 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf ACLUv. Dep't of im mi!!rat ion-en forcement-actions-n orthe rn-california (FOIA request for ICE enforcement action records); https: Justice, 321 F. Supp. 2d 24, 30 n.5 (D.D.C. 2004) (finding non-profit public interest group to be //www. acIunc.org/news / lawsu it-seeks -documen ts-re gardirnr-ice-raids (lawsuit challenging government's "primarily engaged in disseminating information"). The ACLU-NC is a "representative ofthe response to FOIA request for ICE enforcement action records); news media" for the same reasons that it is "primarily engaged in the dissemination of 5 See, e.g., Eric Tucker, 5 Men Sue Over Anti-Terror Info-Sharing Program, Associated Press, July 9, 2014, information." See Elec. Privacy Info.Ctr. v. Dep't of Def, 241 F. Supp. 2d 5, 10-15 (D.D.C. http://goo.gl/NYgF8p; Hameed Aleaziz, Lawsuit Against ICE Seeks Information on Asylum Seekers, SFGate.com, 2003) (finding nonprofit public interest group that disseminated an electronic newsletter and Oct. 20, 2016, http://goo.gl/VjBJYZ; Luke Darby, What Surveillance Looks Like Under the Trump Administration, published books was a "representative of the news media" for FOIA purposes). The ACLU-NC GQ Magazine, May 1, 2017, http://goo.gl/oYvQfq; Daisy Alioto, How Taking a Photograph Can Land You a Visit from the FBI, Artsy.com, June 20, 2017, http://goo.gl/bGZvPh; Nicole Narea, ICE To Hand Over Asylum Seeker recently was held to be a "representative of the news media." Serv. Women's Action Network v. Detention Policy Data, Law360.com, Aug. 9, 2017,http://goo.gl/Q4y34D. Dep't of Def, No. 3:l 1CV1534 (MRK), 2012 WL 3683399, at *3 (D. Conn. May 14, 2012); see
FOIA Office, U.S. Immigration and Customs Eriforcement March 19, 2018 Page5 also ACLU of Wash. v. Dep't of Justice, No. C09-0642RSL, 2011 WL 887731, at *10 (W.D. Wash. Mar. 10, 2011) (finding ACLU of Washington to be a "representative of the news media"), reconsidered in part on other grounds, 2011 WL 1900140 (W.D. Wash. May 19, 2011). * * * Pursuant to the applicable statute and regulations, we expect a determination regarding expedited processing within ten (10) calendar days. See 5 U.S.C. § 552(a)(6)(E)(ii)(I); 6 C.F.R. § 5.5(e)(4). If this request for information is denied in whole or in part, we ask that you justify all deletions by reference to specific exemptions to the Freedom of Information Act. We expect you to release all segregable portions of otherwise exempt material in accordance with 5 U.S.C. § 552(b). We reserve the right to appeal a decision to withhold any information. Thank you for your prompt attention to this matter. Please furnish all applicable records to Vasudha Talla, American Civil Liberties Union ofNorthern California, 39 Drumm Street, San Francisco, California 94111, telephone (415) 621-2493 ext. 308. I affirm that the information provided supporting the request for expedited processing is true and correct to the best of my knowledge and belief. Executed on the 19th day of March, 2018. Staff Attorney American Civil Liberties Union Foundation of NorthernCalifornia
Review Steps: 1. Determine the “subject(s) of your request; 2. Search for responsive records that have already been released; 3. Determine what agency or agencies you think have responsive records; 4. Determine fee waiver eligibility and other fee issues; 5. Determine how and when you want to receive records; and 6. Draft and submit, keeping in mind requirements discussed earlier.
FOIA Process INITIAL REQUEST PRE-DETERMINATION COMMUNICATIONS PRE-DETERMINATION AGENCY ACTIONS DETERMINATION RELEASING RECORDS ADMINISTRATIVE APPEALS LITIGATION AND/OR OGIS
Let’s make a FOIA Request!
Step 1: Subject(s) of Request What do we want to know? How is the government preparing for • future protests against pipeline projects? What do we already know? Information discovered from • repression of Standing Rock and past Keystone XL protests What terms might we use? Standing Rock, Keystone XL, KXL, • Private Security, Cooperation between law enforcement and private security, protests, preparation for protests, pipeline, cooperation between law enforcement and oil industry, etc. Date range? • What records, if any, do we already have? •
Handout Page 115
What Do We Already Know? (handout p. 205)
How Do We Present That Information? Why Would/Should We? (handout p. 116-117)
How Do We Present That Information and Why Would We? (handout p. 118)
Who Are We Going to Send the Request to? (handout p. 114)
Fee Waiver & Processing Handout p. 120
Fee Waiver handout p. 121
Fee Waiver?
Fee Waiver
Send the Request! To who and how to send? • Agencies are required to publish the contact information of • the person or office of the agency that handles FOIA requests. Can include email, fax, and mailing address. Some agencies • have online portals that accept FOIA requests.
What Happens After You Send? 1. Acknowledgement letter; 2. Pre-determination agency communications; 3. Pre-determination agency actions; 4. Determinations; and 5. Release of records (or not)
Acknowledgment Letter Should include tracking number and may include other • information – Section 552(a)(7) requires all agencies establish a phone or online method to receive updates about status of request.
Communications Requesting Clarification – This kind of communication will pause (“toll”) the 20 day time frame.
Communications Requesting Clarification – What happens if you don’t respond?
Determination After the acknowledgment letter and any requests for • clarification, you will likely receive a “determination” letter. A “determination” must, generally, be made within 20 days of the date of the letter and occurs after the agency has: – Completed a search for responsive records; – Reviewed the records; and – Informed the requester which records which will be disclosed, if any. – If withholding or redacting, the determination must state the legal basis for withholding/redacting (exemptions). Determination may also include a determination or an • estimate regarding fees.
Determination If agency misses the deadline and no exception • exists, you may file an administrative appeal or sue. Expedited requests: determination must be made “as • soon as practicable” per 5 U.S.C. 552(a)(6)(E)(iii)—10 days in most cases. Extensions (usually no more than 10 days): • "Unusual circumstances” – There are three categories under – section 552(a)(6)(B)(iii): • Searching for records in “field facilities or other establishments that are separate from the office processing the request”; • Searching for “voluminous” records • A need to consult with another agency that has a “substantial interest in the determination of the request or among two or more components of the agency having a substantial subject-matter interest therein.”
Communications Requesting Clarification “If…the agency concludes that it needs additional information to process the request, it may make ‘one request’ for that information, and the 20-day clock is tolled while the agency “is awaiting such information that it has reasonably requested from the requester.” Nat. Res. Def. Council, Inc. v. United States Envtl. Prot. Agency, 383 F Supp 3d 1 (DDC 2019) (citing 5 U.S.C. 552(a)(6)(A). However, if the agency has not sent a request for clarification within 20 days of the acknowledgment of receipt, it is already in violation of FOIA. Id.
Still Interested Letter An agency may send you a request to ask whether you are still interested in having your FOIA request processed. These letters generally include a time-frame for you to respond, otherwise the agency will consider your request “closed.” Respond to these letters if you are still interested. Keep track of your correspondence.
Other Responses Glomar Response: Response in which agency refuses to confirm or deny the • existence of responsive documents; Agency may withhold records when disclosure could harm • national security or other harms cognizable by FOIA. Challenging a Glomar response: Can you demonstrate that the agency is withholding records in • bad faith? Has the information in the records sought been officially • acknowledged to the public? “leaks” will not constitute “official acknowledgment” • 2018 case: Trump tweeted that CIA was training and arming Syrian • rebels. Person requested records related to the training and support. Court said the requester was not entitled to the records because the tweet, somehow, was not an official acknowledgment.
Handout p. 196
Determination Letter Twelve pages of emails were considered “responsive.” Five pages were withheld in their entirety. Seven pages were disclosed in redacted form (Exemption 6). Exemptions cited: • – Exemption 5 • “inter-agency or intra-agency memorandums or letters that would not be available by law to a party…in litigation with the agency.” • Applicable privilege: Deliberative Process Privilege (protects “advisory opinions, recommendations, and deliberations comprising part of a process by which governmental decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 US 132, 149. Also citing to Kidd v. US Dept. of Justice, 362 Fsupp 2d 291, 296 (DDC 2005) (“protecting documents on basis that disclosure would ‘inhibit drafters from freely exchanging ideas, language choice, and comments in drafting documents.”)
Determination Letter Exemptions cited: Exemption 6: • • Protection of information that, if released, would constitute a “clearly unwarranted invasion of privacy.” Letter notes that an individual privacy interest must be weighed against the public interest. Exemption 6 was invoked to protect email addresses of Army personnel. Exemption 7(A) and (E): • • Cited to withhold ”records or information compiled for law enforcement purposes.” Army said that release of this information “could be reasonably expected to interfere with law enforcement proceedings.” • Army claims that the information in the document concerned “protestor targeting of” US Army Corps of Engineers “leadership.” Also includes notice of right to appeal (within 90 days) and the method of appeal (email)
Handout p. 224-242
Administrative Appeal Grounds for appeal: • – Denials of access to records in whole or part • Challenging cited exemptions (including 552(c) and Glomar responses) – Denials of fee waivers and other fee issues – Denial of expedited processing or other timeline delays (”constructive denials”) – Inadequate format of records disclosed – Failure of agency to conduct an adequate search
One third of all requests that are appealed result in the release of more records.
Administrative Appeal Timeline for Appeal Requester has no less than 90 days to appeal • Contents of Appeal Clear statement that your communication is a formal appeal of the agency’s • decision(s). Summarize and attach your original request as well as any subsequent • clarifying communications; Attach the agency’s determination letter(s) • Precise grounds of appeal, including legal and policy arguments • Response of Agency to Appeal Agency must respond to appeal within 20 days. • Agency may raise new issues (including new exemptions). You have another • 90 days to respond to these new issues. Adverse decision on appeal is a “final action” and your next step is • LITIGATION
Administrative Appeal What are some reasons to appeal based on the Army’s determination letter? Inadequate search • Improper withholding • Improper redaction • ACLU also sued on the following bases (in part): Improper denial of request for expedited processing; • No decision of fee waiver (implicit denial) • Failure to respond to administrative appeal directed to one • agency Failure to respond at all (BLM) •
Handout p. 154
Determination of Appeal After you send your administrative appeal, the agency has • 20 days to respond. If no response, you may follow up with the agency or you • may file a lawsuit. You may receive a letter affirming the agency’s position. • You may receive a letter affirming in part, but raising new • exemptions or response. If so, you may appeal again or you may sue.
The Nine Exemptions Agencies often withhold records or portions of • records. If the agency withholds documents, the agency must generally cite at least one of nine exemptions listed under section 552(b). An agency that withholds records pursuant to • one of these exemptions bears the burden of proving that the exemption(s) apply per Section 552(a)(4)(B) (U.S. Dep't of Justice v. Reporters Comm. For Freedom of Press, 489 US 749, 755 (1989).
Exemption 1 (B)(1): exempts records that are • “(A)specifically authorized under criteria established by an – Executive order to be kept secret in the interest of national defense or foreign policy; and – (B) are in fact properly classified pursuant to such Executive order;” If you an appeal an agency’s claimed exemption • under (B)(1), a court will show deference to the Executive Branch (see, e.g., Ctr. For Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 926-27 (DCC 20013) EXAMPLE: Leopold v. Cent. Intelligence Agency, 106 F.Supp.3d – 51 (DDC 2015) This case involved a request for information about expenditures related to the CIA’s detention and interrogation (torture) program. The court found that these records were exempt from disclosure because, according to the court, disclosure could “cause exceptionally grave harm.”
Exemption 1 Leopold v. Cent. Intelligence Agency, 106 F.Supp.3d 51 • (DDC 2015) Court: FOIA cases are “typically and appropriately” • resolved on motions for summary judgment. Court may grant summary judgment based “solely on an • agency’s affidavits or declarations when they ‘describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence or agency bad faith.” Citing Larson v. Dep’t of State, 565 F.3d 857, 862 (DCC 2009) These affidavits/declarations are accorded a “presumption • of good faith” by the court. Citing SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (DDC 1991).
Exemption 1 Leopold v. Cent. Intelligence Agency, 106 F.Supp.3d 51 (DDC 2015) When reviewing an agency’s claim that Exemption 1 • applies, a court will generally claim that it “lack[s] the expertise necessary to second-guess such agency opinions in the typical national security FOIA case” and, as such, “must accord substantial weight to an agency’s affidavit.” Citing ACLU v. Dep’t of Defense, 628 F.3d 612, 619 (DDC 2011). “Ultimately, an agency’s justification for involving a FOIA • exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Citing Judicial Watch, Inc. v. Dep’t of Defense (Judicial Watch I), 715 F.3d 937, 941 (DDC 2013) (quoting ACLU at 619).
Exemption 1 Exemption 1 requires a record to be “properly classified” in order for an agency to assert this exemption. If the record is not properly classified, that may be a basis to challenge the agency’s invocation of Exemption 1. How do we know if something is properly classified? Each agency has a specific process to classify documents • and there are several procedural issues that should be researched if an agency claims this exemption. Executive Order 13526 (handout p. 128-152; see also the • end of the FOIA statute) controls current classification standards. Under EO 13526, information is properly classified if: – An “original classifying authority is classifying the information”; – “the information is owned by, produced by or for, or is under the control of the United States Government.”; or – “the information falls within one or more of the categories of information” appropriate for classification. There are eight categories (see Appendix 8).
Exemption 1 Information is properly classified if: “[T]he original classification authority determines that the • unauthorized disclosure of the information reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the change.” Standard of Review by the Court: • – Burden is on agency to show that invocation of exemption was proper – Court reviews issue de novo (looks at the legal issues fresh) – Agency will likely submit affidavits/declarations to support its position – Requester’s responsibility to submit countervailing evidence
In-Camera Review After the 1974 amendments, courts were allowed to inspect documents outside of the view of the public to determine whether an agency’s cited exemptions are proper. When do courts think this kind of inspection is appropriate? When the number of records/documents is relatively small. • New York Times Co. v. U.S. Dep’t of Justice, 872 F Supp 2d 309 (SDNY 2012). If a judge thinks such review is required to “make a • responsible de novo determination on the claims of the exemption.” Int’l Counsel Bureau v. U.S. Dep’t of Def., 864 F Supp 2d 101, 105 (DDC 2012). If the agency’s affidavits/declarations “provide no • illumination” on the justification of the exemption. Id.
EO 13526 According to EO 13526, an agency cannot classify records to: “conceal violations of law, inefficiency, or administrative error”; • • “prevent embarrassment to a person, organization, or agency”; • “restrain competition”; or “prevent or delay the release of information that does not require • protection in the interest of the national security.” How to challenge: If agency claims harm will result from disclosure, you may be able • to argue that none of the harms cited by the agency could reasonably be expected to occur. You may be able to challenge the duration of the classification. All • records, when classified, must specify a date or event that triggers declassification. There are several rules about classification that should be researched.
EO 13526 How to challenge (contd.): If you don’t think the requested records meet the • qualifications for classification, you should make public interest policy arguments (i.e., public disclosure outweighs the need to protect information in records). – If you make this argument, is limited to arguments you made in your administrative appeal (you have to raise this issue in your admin appeal). An agency head or senior official will make a determination about the public interest vs. harm. If you litigate, the court generally won’t engage in a balancing test. – However, if in camera review is appropriate, the court may consider whether a public interest exists. Prior disclosure: If documents have already been • disclosed, what harm could result? Tried everything? You may be able to go through the • ”Mandatory Declassification Review process” (outlined in EO 13526).
Exemption 2 Exemption 2 allows an agency to withhold records “related solely to the internal personnel rules and practices of an agency.” Controlling case: Milner v. Dept. of Navyi, 562 US 562 • (2011). – “Personnel” rules refer to rules that are about personnel, not for personnel. That is, it refers to rules and practice that relate to employee relations or human resources. – “Rules and practices,” the Milner court explained, “share a critical feature: They concern the conditions of employment in federal agencies—such matters as hiring and firing, work rules and discipline, compensation, and benefits.” – Like exemption 1, there is a public policy exception for disclosure. – If you are seeking training or use of force policies for law enforcement you may run into this exemption.
Exemptions 3&4 Exemption 3 exempts records if such exemptions are statutorily allowed. This exemption is only proper if the statute: (A)(i) requires that the matters be withheld from the public • in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld; and (B) if enacted after the date of enactment of the OPEN FOIA • Act of 2009, specifically cites to this paragraph. Exemption 4 exempts records that could reveal trade secrets and commercial or financial information obtained from a person and is privileged or confidential.
Exemption 5 Exemption 5 allows an agency to withhold “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency, provided that the deliberative process privilege shall not apply to records created 25 years or more before the date on which the records were requested;” Five privileges recognized by US Supreme Court: Deliberative process privilege • Attorney work product • Attorney client Confidential commercial communications, and • • Statements of fact made to the government during an air crash investigation. (5th cir. also recognizes privilege of expert witness • reports) To qualify for this exemption, records must: • – Be from a government agency (see also, consultant corollary doctrine), and “must fall within the ambit of a privilege against discovery.” Dept. of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001).
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