FREEDOM OF INFORMATION ACT: A Guide for Activists and Lawyers - - PowerPoint PPT Presentation

FREEDOM OF INFORMATION ACT:

A Guide for Activists and Lawyers

By the end of this workshop, you should:

• Have a general understanding of FOIA;
• Know how to make a request for records using

FOIA;

• Know how to appeal denials of records; and
• Have a general understanding of the process
• f litigating denials of records.

Workshop Goals

• This training utilizes several handouts, including

examples of FOIA requests, articles, commentary, lawsuits, and records obtained through FOIA requests.

• Please keep this packet handy as we go through

this training.

Handouts and Other Materials

Resources

This training is indebted to several resources developed by the groups below. We encourage you to explore these resources after this training.

• Reporters Committee for Freedom of the Press
• MUCKROCK
• The FOIA Project
• The National Security Archive
• Open the Government

These organizations, along with several individuals, assisted in the creation of what we believe is one of the most helpful online resources regarding FOIA: The FOIA Wiki (www.foia.wiki). This workshop is indebted to the creators of the FOIA Wiki, and we encourage everyone to refer to this valuable resource.

FOIA: What is it?

• The Freedom of Information Act is codified under United States

Code, Title 5 Section 552 (5 U.S.C. § 552) (Act amended Section 3

• f the Administrative Procedure Act, chapter 324). HANDOUT P. 1-

31

• FOIA requires federal agencies of the executive branch to

disclose certain records, in whole or in part, upon request.

• FOIA does not require agencies to disclose all records. There are

nine categories of records that are exempt from disclosure (which we will discuss later).

• This training will not cover records requests made to state
• agencies. However, see Handout (pages 52-54) for a list of select

state records laws.

Purpose of FOIA

The “basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.”

• NLRB v. Robbins Tire & Rubber, 47 U.S. 214 (1978)

Purpose of FOIA

“It has often been observed that the central purpose

• f the FOIA is to ‘open up the workings of government

to public scrutiny.’ One of the premises of that

• bjective is the belief that ‘an informed electorate is

vital to the proper operation of a democracy.’ A more specific goal implicit in the foregoing principles is to give citizens access to the information on the basis of which government agencies make their decision, thereby equipping the populace to evaluate and criticize those decisions.”

• McGehee v. CIA, 697 F.2d 1095 (D.C. Cir. 1983).

Who Uses FOIA?

• Anyone! (almost)
• Journalists, activists, public interest organizations,

curious citizens, businesses often use FOIA.

• Records disclosed pursuant to a request under FOIA

have shed light on several aspects of government. It may also have a strategic “offensive” component that activists can use.

What documents might you receive?

TigerSwan—OPS/INTEL Fusion Lead 10.17.16

• Nov. 20, 2016 Intel Thread

TigerSwan—OPS/INTEL Fusion Lead 10.17.16

Keystone XL Pipeline

History of FOIA

• First proposed by California U.S. House Rep. John Moss in 1955.
• Moss was elected in 1953 amidst accusations that he was a communist.

These accusations were often part of what is known as the “Truman Loyalty Program.”

• The targets of these accusations could be fired from their government

jobs, prosecuted, and made unemployable. The accused:

– Were not permitted to confront their accusers; – Were not permitted to see the charges against them; – Were prosecuted or disciplined based on hearsay and other forms of secret evidence.

• Over 2000 government employees were fired as a result of accusations

stemming from the Truman Loyalty Program. This upset Moss. He thought people should be able to see how this program was being administered.

History of FOIA

• Finally, in1966, Moss and others were successful in implementing

the first version of FOIA. It went into effect in 1967.

– This version did not contain any methods to compel agencies to disclose records.

• Agencies devised endless schemes to avoid disclosing documents.
• Post-Watergate

– Amended in 1974 – Opposed by several members of the executive branch – New version of FOIA provided:

• Judicial review of records after agency denials;
• Mandatory attorney fees for prevailing parties;
• Caps on the fees that agencies could charge requesters;
• Standardization of record keeping process
• Narrowing of exemptions

Who Can Request Records?

• “[A]ny person” may request records. 5 U.S.C.

552(a)(3)(A). This means any person, regardless of U.S. citizenship, may request records under FOIA.

• Organizations, whether corporations, public

interest groups, churches, news organizations, etc., may also make requests on behalf of the

• rganization.

Entities Subject to FOIA

• “Agencies” under the executive branch of the federal government
• Over 100 entities are subject to FOIA
• An agency is “any executive department, military department,

Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government (including the Executive Office of the President), or any independent regulatory agency[.]” 5 U.S.C. § 552(f). Section 552(f) references section 551(1) of the APA for the definition of “agency.”

• APA definition is essentially the same: an “agency” is “each authority of

the Government of the United States, whether or not it is within or subject to review by another agency.” 5 U.S.C. § 551(1).

Entities Subject to FOIA

• If there is a dispute over whether a particular entity is

an agency subject to FOIA, courts will often rely on the fact that the FOIA definition of “agency” was intended to include “those entities…which perform governmental functions and control information of interest to the public.” H.R.Rep. No. 93-876, 93d Cong., 2d Sess. 8 (1974), U.S.Code Cong. & Admin.News 1974, 6267, 6274.

Entities Not Subject to FOIA

• Congress;
• The U.S. President, Vice President, and personal staff
• Courts;
• Governments of the “territories or possessions” of the

U.S.;

• Government of the District of Columbia;
• Advisory Committees;
• Private entities (with some exceptions); and
• Federally-funded state agencies

Private Entities and FOIA

• There are a select few corporations that are subject to FOIA.

Generally, FOIA will not apply to private businesses that contract with the federal government. In examining whether a business is an agency for the purposes of FOIA, a court will look to the extent of “federal involvement and control” of the

• entity. Rocap v. Indiek, 539 F2d 174 (DC Cir 1976).
• However, for activists, if a corporation is not directly subject

to FOIA, there are other ways to uncover the relationships between the federal government and corporations…

Private Entities and FOIA

Private Entities and FOIA

Records Subject to FOIA

• What is a “record”?

– 5 U.S.C. 552(f)(2); not helpful – Can include documents (memoranda, emails, text messages, policies, etc.), audio, video, presentation materials, etc. The definition is broad.

• What records are subject to FOIA?

– Agency Records – What are “agency records”? – An agency record is a record that is created or obtained by an agency. U.S. Dep't of Justice v. Tax Analysts, 492 US 136 (1989). – Agency must be “in control” of the requested materials at the time the FOIA request is made. Id. – Does not include the personal materials of an agency employee. Id.

Records Subject to FOIA

• What does it mean for an agency to “create” a record?

– Look to ”the process by which the records [were] generated[,] not necessarily who provided the “contents of the records.” Judicial Watch, Inc. v. U.S. Secret Serv., 803 F.Supp.2d 51, 57 (D.D.C. 2011) (quotations omitted) – Private entities: If a record was “neither created by agency employees” nor “currently located on agency property,” the record may still be an agency record if the private entity “acted on behalf of [the agency] in creating” the

• record. Burka v. U.S. Dep’t of Health and Human Servs., 87 F.3d 508, 515 (D.C.
• Cir. 1996).

– Agencies are not required to create a new record in response to a request.

• What does it mean for an agency to “obtain” a record?

– Must have physical possession (by whatever medium)

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

ACLU

Northern California

March 19, 2018 VIA U.S. POSTAL SERVICE, CERTIFIED MAIL RETURN RECEIPT REQUESTED VIA EMAIL ICE-FOIA@dhs.gov U.S. Immigration and Customs Enforcement FOIA Office 500 12th Street, S.W., Stop 5009 Washington, D.C.20536-5009 Re: Freedom oflnformation ActRequest Expedited Processing Requested Attention: 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

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. I. REOUE T FORINFORMATION The American Civil Liberties Union of Northern California (the "ACLU-NC") hereby requests disclosure of all records in your possession relating to contracts by and between the U.S. Immigration and Customs Enforcement ("ICE") and contractors related to Automated License Plate Reader ("ALPR") systems, databases, and technology.1

including but not limited to: correspondence, documents, data, videotapes, audio tapes, emails, faxes, files, guidance, guidelines, evaluations, instructions, analyses, memoranda, agreements, notes, orders, policies, procedures, protocols, reports, rules, training manuals, other manuals, or studies. With respect to privacy concerns for members of the public, we will accept copies that are redacted to protect identifying information such as names, social security numbers, and alien numbers, but we would object to the redaction ofbirthdates and birthplaces that would interfere with our ability to determine the ages and countries of origin for members of the public. In addition, we request that members of the public whose identifying information is redacted be identified with an alphanumeric code so that multiple records related to the same individual will be recognized as such. This redaction agreement does not apply to identifying information such as names and badge numbers for federal agents. American Civil Liberties Union Foundation of Northern California

FOIA Office, U.S. Immigration and Customs Enforcement March 19, 2018 Page2

In particular, we request disclosure ofrecords containing the following information:

• 1. Any contracts, addenda, attachments, memoranda of understanding, amendments,

modifications, or other agreements made and/or negotiated pursuant to the Request 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 communications related to such contracts, memoranda of understanding, or other agreements;

• 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 (LPR) Data from a Commercial Service," DHS/ICE/PIA-039(a), dated December 27, 2017 (the "Updated PIA") related to access to a commercial ALPR database, along with all associated communications, addenda, attachments, memoranda of understanding, amendments, modifications, or other agreements;2 and

• 3. Any contracts, addenda, attachments, memoranda of understanding,

amendments, modifications, or other agreements made and/or negotiated pursuant to the Solicitation and Contract Award No. 70CDCR18P00000017, "Access to Commercially Available LPR Database," issued by ICE, along with communications related to such contracts, memoranda of understanding, or

• ther agreements.3

II. REQUEST FOR EXPEDITED PROCESSING 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 defined in the statute and regulations, because there is urgency to inform the public concerning actual or alleged Federal Government activity and the request has been made by an organization primarily engaged in disseminating information. See 5 U.S.C. § 552(a)(6)(E)(v); 6 C.F.R. §5.5(e)(l)(ii). First, the ACLU-NC is a requestor "primarily engaged in disseminating information." 5 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 ACLU, a national organization that works to protect civil liberties of all people, including the safeguarding of the basic constitutional rights to privacy, free expression, and due process

• f law. The ACLU-NC is responsible for serving the population of northern California.

ACLU-NC staff persons are frequent spokespersons in television and print media and make frequent public presentations at meetings and events. The ACLU-NC plans to analyze and disseminate to the public the information gathered through this Request at no cost, and the records are not sought for any commercial purpose. Dissemination of information about actual or alleged governmental activity is a critical and substantial component of the ACLU's mission and work. The ACLU-NC actively

965f5ac4c&tab=core&_cv iew=O.

Handout p. 109

FOJA Office, U.S. Immigration and Customs Enforcement March 19, 2018 Page3

disseminates and frequently garners extensive media coverage of the information it obtains about actual or alleged government activity through FOIA and California's statutory counterpart, the 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 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 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 media.5 ACLU-NC staff persons are frequent spokespersons in television and print media and make frequent public presentations at meetings and events. Courts have found that the ACLU and similar organizations are "primarily engaged in 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 interest group that "gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw material into a distinct work, and distributes that work to an audience" is "primarily engaged in disseminating information" (internal citation omitted)); see also Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246,260 (D.D.C. 2005) (finding Leadership Conference-whose mission is to "disseminate[] information regarding civil rights and voting rights to educate the public [and] promote effective civil rights laws"-to be "primarily engaged in the dissemination ofinformation"). Second, there is urgency to inform the public concerning actual or alleged federal government activity. Recent news articles reflect the significant media and public interest in the use of ALPR technology by governments. See Russel Brandom, ICE Is About to Start Tracking License Plates Across the US, THE VERGE (Jan. 26, 2018), https://www.theverge.com/2018/1/26/16932350/ice-immigration-customs-license-plate 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 plate-readers/index.html; Chantal Da Silva, City Refuses to Let Ice Track License Plates With 'Digital Deportation Machine', NEWSWEEK (Feb. 14, 2018), http://www.newsweek.com/city refuses-let-ice-track-licenses-places-digital-deportation-machine-806845. This request will

musl im-ban (FOIA request for CBP detention and deportation records); https: // www. aclunc .org/news/aclu northern- ca li fornia-files-l aws uit-demand ing-documents-imp lement ation-trumps-mus lim-ban (lawsuit challenging government's response to FOIA request for CBP records) https://www .aclunc .or g/news /aclu -seeks-records im mi!!rat ion-en forcement-actions-n orthe rn-california (FOIA request for ICE enforcement action records); https: //www. acIunc.org/news / lawsu it-seeks -documen ts-re gardirnr-ice-raids (lawsuit challenging government's response to FOIA request for ICE enforcement action records);

http://goo.gl/NYgF8p; Hameed Aleaziz, Lawsuit Against ICE Seeks Information on Asylum Seekers, SFGate.com,

• Oct. 20, 2016, http://goo.gl/VjBJYZ; Luke Darby, What Surveillance Looks Like Under the Trump Administration,

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 Detention Policy Data, Law360.com, Aug. 9, 2017,http://goo.gl/Q4y34D. FOIA Office, US. Immigration and Customs Eriforcement March 19, 2018 Page4

inform an urgent ongoing debate about the use of ALPR tracking by governments agencies, and specifically seeks to inform the public's understanding of how federal agencies utilize ALPR data in immigration enforcement.

• III. APPLICATION FOR WAIYER OR LIMITATION OF FEES
• A. Release of the records is in the public interest.

We request a waiver of search, review, and reproduction fees on the grounds that disclosure of the requested records is in the public interest because it is likely to contribute 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. § 552(a)(4)(A)(iii); 6 C.F.R. § 5.1l(k). As discussed above, numerous news accounts reflect the considerable public interest in the requested records. Given the ongoing and widespread media attention to this issue, the records sought by the Request will significantly contribute to the public understanding of the

• perations and activities of the Department of Homeland Security and ICE, and will be of

interest to a broad interest. See 6 C.F.R. § 5.1 l(k)(l)(i), (k)(2)(iii). In addition, disclosure is not in the ACLU-NC's commercial interest. As described above, any information disclosed as a part

• f this FOIA Request will be available to the public at no cost. Thus, a fee waiver would fulfill

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 in favor of waivers for noncommercial requesters."') (citation omitted); OPEN Government Act

• f 2007, Pub. L. No. 110-175, § 2, 121 Stat. 2524 (finding that "disclosure, not secrecy, is the

dominant objective of the Act," quoting Dep 't of Air Force v. Rose, 425 U.S. 352,361 (1992)).

• B. The ACLU-NC qualifies as a representative of the news media.

A waiver of search and review fees is warranted because the ACLU-NC qualifies as a "representative of the news media" and the requested records are not sought for commercial use. 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 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 interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience." 5 U.S.C. § 552(a)(4)(A)(ii)(II); see also Nat'!

• Sec. Archive v. Dep't of Def, 880 F.2d 1381, 1387 (D.C. Cir. 1989); cf ACLUv. Dep't of

Justice, 321 F. Supp. 2d 24, 30 n.5 (D.D.C. 2004) (finding non-profit public interest group to be "primarily engaged in disseminating information"). The ACLU-NC is a "representative ofthe news media" for the same reasons that it is "primarily engaged in the dissemination of information." See Elec. Privacy Info.Ctr. v. Dep't of Def, 241 F. Supp. 2d 5, 10-15 (D.D.C. 2003) (finding nonprofit public interest group that disseminated an electronic newsletter and published books was a "representative of the news media" for FOIA purposes). The ACLU-NC recently was held to be a "representative of the news media." Serv. Women's Action Network v. 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 LITIGATION ADMINISTRATIVE APPEALS AND/OR OGIS PRE-DETERMINATION AGENCY ACTIONS DETERMINATION RELEASING RECORDS

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

• f 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,

• therwise 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
• ne 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

• rder;”
• 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
• f 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

• pinions 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

• rder 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.

• f Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8 (2001).

Exemption 6

• Exemption 6 allows an agency to withhold “personnel and

medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;”

• Balancing test to weigh privacy against public interest in

disclosure.

• If disclosure would or could result in embarrassment or

humiliation, agency may not release records.

• Courts will look to whether privacy interest at issue is

“significant.” A “clearly unwarranted invasion of personal privacy,” requires more than simply stating “a demonstrated privacy interest.” Alliance for the Wild Rockies v. Dep’t of the Interior, 53 F.Supp.2d 32, 36 (DDC 1999).

Exemption 6

• Protected privacy interests:

– Private phone numbers, medical records, hospital admission records, home addresses – Non-protected privacy interests (or instances in which courts have not recognized a “substantial privacy interest):

• Names of government employees that were alleged to be involved

in an identity theft crime ring;

• Names and business addresses of unsuccessful applicants for

federal research grants;

• Identifying information submitted by members of the public to the

IRS regarding audits and investigations of non-profit entities. There is no “blanket anonymity for private citizens who write letters requesting assistance from government officials, even when personal relationships are implicated.” (agency failed to offer facts to support its assertion that the individuals would be harassed) Landmark Legal Found. V . I.R.S., 87 F.Supp.2d 21, 27-8 (DDC 2000);

• Attempts by private parties to influence policy.

Exemption 6

• There are diminished privacy interests for public
• fficials, public figures, and the deceased.

– Regarding the latter, SCOTUS has recognized that “surviving family members [have a] right to personal privacy with respect to their close relative’s death-scene images.”

• Records related to government misconduct:

– Requester must “produce evidence that would warrant a belief by a reasonable person that the alleged Government impropriety might have occurred;” Nat’l Archives & Records

• Admin. v. Favish, 541 U.S. 157, 174 (2004).

Exemption 6

Non-protected privacy interests (or instances in which courts have not recognized a “substantial privacy interest):

• Names of government employees that were alleged to be

involved in an identity theft crime ring;

• Names and business addresses of unsuccessful applicants for

federal research grants;

• Identifying information submitted by members of the public to

the IRS regarding audits and investigations of non-profit entities. There is no “blanket anonymity for private citizens who write letters requesting assistance from government officials, even when personal relationships are implicated.” (agency failed to

• ffer facts to support its assertion that the individuals would be

harassed) Landmark Legal Found. V . I.R.S., 87 F.Supp.2d 21, 27-8 (DDC 2000);

• Attempts by private parties to influence policy.

Exemption 7

Exemption 7(A)-(F) allows an agency to withhold “records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

• (A) could reasonably be expected to interfere with enforcement

proceedings,

• (B) would deprive a person of a right to a fair trial or an impartial

adjudication,

• (C) could reasonably be expected to constitute an unwarranted invasion of

personal privacy,

• (D) could reasonably be expected to disclose the identity of a confidential

source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source,

• CONTINUED…

Exemption 7

(E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention

• f the law, or

(F) could reasonably be expected to endanger the life or physical safety of any individual;

Exemption 7

(b)(7) exemptions are some of the most commonly cited exemptions (obviously) by law enforcement agencies like the FBI, the Forest Service, and others. Activists and individuals who are seeking information on the government’s spying, targeting, and repression of activist movements are often stonewalled by these exemptions. If there is a dispute over whether a record was “compiled for law enforcement purposes,” a court (DC, Third, and Ninth Cir.) will likely employ a “rational nexus test.” Under this test, a record is compiled for LE purposes if:

• the investigatory activity giving rise to the records relates “to the

enforcement of federal laws or to the maintenance of national security.”

• Agency must identify: “a particular individual or a particular incident as the
• bject of its investigation and the connection between that individual or

incident and a possible security risk or violation of federal law.”

• CONTINUED…

Exemption 7

The agency must establish that it “acted within its principal function of law enforcement, rather than merely engaging in general monitoring of private individuals’ activities.” Agency must show a connection between its investigation and one of its law enforcement duties with “information sufficient to support at least ’a colorable claim’ of its rationality.”

• Agency cannot use “pretextual or wholly

unbelievable” reasons to support the existence of the connection. It is not necessary that the investigation lead to a law enforcement ”proceeding.”

Exemption 8

Agency may withhold records ”contained in or related to examination,

• perating, or condition reports prepared by, on behalf of, or for the

use of an agency responsible for the regulation or supervision of financial institutions; To withhold under this exemption, an agency must satisfy three conditions:

1. The institution at issue is a ”financial institution”; 2. The agency from which records are requested has a supervisory or regulatory relationship with the financial institution; and 3. The records relate to “examination, operating, or condition reports prepared by, on behalf of, or for the use of” the agency;

Most common challenges to this exemption:

• If you have evidence of government misconduct involving the financial

institution, you may be able to override the protections of the exemption;

• Public policy arguments

Exemption 9

Exemption 9 allows an agency to withhold records regarding “geological and geophysical information and data, including maps concerning wells.”

Other Responses

Section 552(c) exclusions:

• An agency may respond with a 552(c) exclusion

when a record falls under Exemption 7. This exclusion is the agency’s way of saying that the excluded records do not exist or are not subject to FOIA.

• Usually applies to subjects of criminal investigations
• Purpose is to not “tip off” the person or organization

being investigated

• If you can show that the subject is already aware of

the investigation, you may be able to overcome this “exclusion.”

Litigation

Statute of Limitations

• All FOIA lawsuits must be filed within six years of

exhausting your administrative remedies (i.e., after your appeal is denied, your fees denied, or the agency has failed to comply with applicable time limits).

Litigation

Requirements to Litigate:

• Highly advisable to get an attorney at this point (if you have not already)
• Exhaust administrative remedies (applies to both the initial request and

administrative appeal) Standing

• Requester must, generally, be Plaintiff
• Requester must establish “injury”
• Injury must be caused by agency or (individual or policy of agency)

To establish an “injury,” a requester must allege:

• Deprivation of information that, based on the requester’s interpretation of

FOIA, requires the government to disclose the information; and

• The requester has suffered by being denied access to that information (i.e.,

the kind of harm that Congress sought to prevent by requiring disclosure)

• See Elec. Privacy Info. Ctr. V

. Drone Advisory Comm., 369 F Supp 3d 27 (DDC 2019)

Litigation

Jurisdiction and Venue

Jurisdiction: whether a court has authority to hear the case

• Personal and subject-matter jurisdiction under 5 U.S.C. § 552(a)(4)(B)

Venue: the geographic place of the court. Venue is appropriate in

• ne of three places:
• The district where the requester resides or has their principal place of

business;

• The district where the agency records are located; or
• The District of Columbia
• If requester is not in the U.S., only D.C. is appropriate.

Litigation

After you have filed and served your complaint, the defendant (or defendants) has 30 days to file an answer. Remedies: What do you want the Court to do?

• Preliminary Injunction: This remedy asks the court to order the agency

defendant(s) to refrain from or to continue a particular course of action. In FOIA actions, a PI is usually requested to force the agency-defendants to expedite the processing of the FOIA request.

– To prevail, a court will attempt to determine:

• Whether you are likely to prevail “on the merits” of your case;
• Whether you will be irreparably harmed if a PI is not ordered;
• Whether the agency-defendant would be harmed by a PI; and
• Whether the public will benefit from a PI (i.e., whether there is a ”public interest.”

Judicial Watch, Inc. v. DHS, 514 F Supp 2d 7, 11 (DDC 2007).

• Permanent injunction – obtaining the records themselves

Litigation

Discovery in FOIA cases is unlike that in other civil cases because most of the discovery materials that would normally be requested are precisely the materials that the agency wishes to withhold. You will likely fight over discovery and may need to litigate a motion to compel. The court may order discovery in the following situations:

• When agency has failed to meet its burden regarding compliance

with “segregability” (i.e., they redacted too much)

• When the agency has failed to meet its burden regarding the

adequacy of its search; or

• If there is a question over the good/bad faith of the agency’s

claims regarding the processing of your request or the processing

• f records within the agency generally.

Litigation

Instances in which a court has declined to grant a motion to compel/discovery order:

• Where declarations/affidavits are reasonably detailed and submitted in good

faith;

• Where requester fails to show that the requested discovery materials will

uncover information that would create a “genuine issue of material fact” (summary judgment standard);

• Where requester is attempting to use discovery procedures to obtain

requested records (i.e., attempting to circumvent FOIA);

• Where requester is attempting to uncover more information about an

investigatory action of an agency or the reasons for undertaking the investigation;

• Where the requester is attempting to use the discovery process as a “fishing

expedition [for] investigating matters related to separate lawsuits”; or

• Where the court has undertaken in camera review/inspection of records at

issue.

Standard of Review in Court

The court reviews the agency’s decision “de novo,” meaning no deference is given to the agency’s rationale; and the agency has the burden to sustain its position. 5 USC 552(a)(4)(B). However, the court must “accord substantial weight to an affidavit of an agency concerning the agency’s determination as to technical feasibility . . . and reproducibility.”

Court procedure

Most often, simply filing the complaint leads the agency to produce additional documents, which can sometimes make the lawsuit moot. If there are still records being withheld, the general procedure in court is for the plaintiff to file a “motion for summary judgment,” rather than a trial, because generally the facts are undisputed.

Award of attorney fees and case expenses

In some types of cases against the government, if the agency voluntarily remedies the problem after you file suit, your case is “moot” and you are not allowed to ask for an award of attorney fees and costs. But FOIA is different. A 2007 amendment to the statute allowing fees in that situation.

FOIA fee provision

The 2007 amendment to FOIA expressly provides: “The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed” and this includes “if the complainant has obtained relief through either - (I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial.” 5 USC § 552(a)(4)(E)

No fees against plaintiffs

If you lose a FOIA case the government cannot get an award of attorney fees against you; but they may get “costs,” which in a FOIA case would likely be minimal (less than $1000, usually much much less).

Helpful resources

• Today’s handouts: https://cldc.org/workshop-

foia

• Password: walkout.sand.carload.travesty
• “FOIA Project” list of lawsuits

http://foiaproject.org/plaintiff-nonprofit/

• Reporters Committee for Freedom of the

Press FOIA guide and documents – https://www.rcfp.org/foia/

Lauren Regan and Marianne Dugan, Senior Attorneys Cooper Brinson, Staff Attorney 1430 Willamette St. #359 Eugene, OR 97401 Phone: (541) 687-9180 www.cldc.org Email: lnfo@cldc.org Contact Us With Questions or Feedback Become a CLDC Member and Support Our Work!

Civil Liberties Defense Center