FOI Advocate Blog

The NFOIC open government blog is a compendium of original concepts and analysis as well as ideas, edited excerpts and materials from a variety of sources. When the information comes from another source, we will attribute it and provide a link. The blog relies on the accuracy and integrity of the original sources cited; we will correct errors and inaccuracies when we become aware of them.

For Advocate posts prior to July, 2011, visit http://foiadvocate.blogspot.com/.
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April 24, 2015 12:14 PM

An immigration attorney accusing U.S. Citizenship and Immigration Services of a “Kafkaesque” failure to comply with a document request on Tuesday urged a Louisiana federal court to order the agency to hand over the documents he says he needs to properly represent his client in deportation proceedings.

Michael W. Gahagan, an attorney at The Immigration Law Firm of New Orleans, says in his summary judgment motion that USCIS cannot show that it has conducted a legally adequate search and that it hasn’t improperly withheld agency records. Gahagan had initially requested one document — a receipt notice for USCIS Form I-485 — an application to register permanent residence or adjust status for his client Lloyd Patterson, but instead received a “document dump” of 509 pages of unrelated information, he says.

Gahagan says that amid that dump, he noticed the USCIS failed to hand over 33 responsive pages within 20 days as part of his Freedom of Information Act request. The agency had indicated it referred the documents to Immigration and Customs Enforcement, but he said he’s skeptical. Continue>>>
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April 22, 2015 12:57 PM

The U.S. Environmental Protection Agency asked an Alaska federal judge Friday to toss a lawsuit accusing it of withholding documents related to its decision to stop what could be one of the largest copper mines in the country.

Plaintiff Pebble Limited Partnership is seeking the disclosure of records related to the potential mining project near Bristol Bay in Southwest Alaska. The EPA said it properly processed the Freedom of Information Act request and released all responsive records to Pebble except for some that fall under statutory exemptions.

Pebble submitted a FOIA request to the EPA in January 2014 seeking documents containing any communication on the Pebble Mine or the agency’s Bristol Bay assessment, which examined the potential impacts of large-scale mining development on Bristol Bay fisheries and wildlife and on regional Alaska Native cultures. Continue>>>
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April 22, 2015 12:49 PM

As the fight over records in a high-profile Vanderbilt University rape case heads to the Tennessee Supreme Court, state and Metro lawyers are arguing against the release of the case files that remain under seal.

The Tennessean, eight media organizations and the Tennessee Coalition for Open Government filed suit against Metro Nashville in fall 2013 seeking records in the hands of police, including text messages between Vanderbilt football players and coaches.

The Tennessee Court of Appeals partially ruled against the media coalition, but the state's highest court agreed to review the case, setting a May 28 date for oral arguments. Continue>>>
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April 21, 2015 2:05 PM

The U.S. Bureau of Land Management finally released some records related to last year’s Bundy ranch confrontation in Bunkerville. Considering the limited number and scope of documents provided to Public Employees for Environmental Responsibility in response to a Freedom of Information Act lawsuit, one of two scenarios is true: Either the BLM is so incompetent that it put no thought into the overdone cattle roundup and never analyzed the guns-drawn showdown that resulted, or it’s so arrogant and unaccountable that its leaders believe they can ignore the law.

As reported by the Review-Journal’s Keith Rogers, the agency provided PEER with a few dozen heavily redacted records that provided no new information about the dispute that mobilized militias and national media and made Southern Nevada the epicenter of federal land use disputes. “We don’t know why it took a year to find 44 pages,” PEER Executive Director Jeff Ruch said Wednesday.

The Review-Journal has filed several FOIA requests with the BLM as well, to find out how much money was wasted on the roundup — rooted in BLM grazing restrictions and the Bundy family’s refusal to pay grazing fees — and whether the BLM was adequately prepared to face armed resistance, among other questions that demand answers. To date, the BLM has not responded to the requests. Continue>>>
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April 20, 2015 1:34 PM

When inquiring minds want to know, non-profit organizations now have a stronger response. Last year, we posed the question: Can a non-profit maintain trade secrets and other confidential commercial information? The First Circuit recently answered our question: “yes.”

In New Hampshire Right to Life v. U.S. Dep’t of Health & Human Servs., 778 F.3d 43 (1st Cir. 2015), the First Circuit held that Planned Parenthood, a non-profit organization, can possess confidential, commercial information, and protect it from disclosure under the Freedom of Information Act (“FOIA”). The First Circuit examined Exemption 4 to the FOIA, which shields documents from FOIA disclosure if they constitute “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” 5 U.S.C. § 552(b)(4). While the First Circuit did not explicitly hold that Planned Parenthood possessed “trade secrets”, it did find that Planned Parenthood possessed information which was both “commercial” and “confidential,” and implicitly found that this confidential, commercial information was valuable to Planned Parenthood (a.k.a. a trade secret).

The First Circuit found not only that non-profits may possess commercial information, but also that a non-profit may suffer competitive injury from the disclosure of certain commercial information, making that information “confidential” and precluding disclosure under the FOIA. Continue>>>
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April 17, 2015 12:51 PM

On April 13, 2015 the Honorable Mary Mikva of the Circuit Court of Cook County ruled in favor of the Illinois High School Association (IHSA) in granting a motion to dismiss a suit alleging that the IHSA’s records were subject to requests under the Freedom of Information Act (FOIA). The court also dismissed claims requesting that a member school obtain and turnover records from the IHSA having nothing to do with that school. FOIA requires that governmental entities make their records public. As a private, voluntary not-for-profit association, the IHSA argued, and the court agreed, that IHSA is not a “public body” subject to the act.

IHSA Executive Director Marty Hickman noted that the IHSA will continue to go above and beyond its legal responsibilities when it comes to financial transparency. In addition to its legal obligations, the IHSA will also extend its practice of posting its independent audit and Annual Report on its website.

“The law was on our side in this situation,” said IHSA Executive Director Marty Hickman. “Our stance all along is that we have and will continue to follow the laws that are in place to govern 501(c)(3) organizations like the IHSA in Illinois.” Continue>>>
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April 15, 2015 1:41 PM

The Office of the Solicitor General has unreasonably refused to turn over records concerning a speech by an OSG official that allegedly conceded misrepresentations by the office in two landmark U.S. Supreme Court cases involving Native American tribes, according to a Freedom of Information Act suit filed Friday in D.C. federal court.
The suit, lodged by the California Indian Law Association, centers on a 2011 speech by then-Acting Solicitor General Neal Katyal, who allegedly gave an “apology or confession of error” concerning the pair of decades-old high court cases at the Federal Bar Association’s Indian Law Conference in New Mexico.

CILA issued a FOIA request in August 2011 for background information on the speech, such as drafts or internal discussions, but OSG responded with only a handful of heavily redacted documents and emails, according to the suit. Continue>>>
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April 15, 2015 1:39 PM

 A Champaign County judge has set a June hearing for a Freedom of Information Act lawsuit filed against the University of Illinois by a professor denied a job at the school.

The (Champaign) News-Gazette reports (http://bit.ly/1IIeH2F ) Champaign County Judge Thomas Difanis on Monday set a hearing for June 12. Professor Steve Salaita and his attorneys filed the lawsuit in November seeking public documents related to his case. The judge in June will rule on motions for summary judgment from both parties.

Difanis said if he doesn't grant summary judgment then he will begin hearing arguments immediately. Continue>>>
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April 10, 2015 1:35 PM

The conservative group Citizens United filed a lawsuit Thursday demanding that the State Department turn over correspondence it hopes will help determine whether Hillary Clinton’s decisions as the nation’s top diplomat were swayed by a pair of wealthy donors to her family’s foundation.

Citizens United said in the lawsuit filed in U.S. District Court for the District of Columbia that its public records requests for documents from the State Department under the Freedom of Information Act have gone unanswered for seven to 10 months.

“The only way to get results is to force bureaucrats into court,” David Bossie, Citizens United’s president and chairman, said in an interview. Continue>>>
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April 10, 2015 1:32 PM

Cook County prosecutors are being sued to provide records of criminal cases that have involved the use of covert cellphone tracking systems — devices that have drawn the scrutiny of the U.S. Senate and privacy activists.

Freddy Martinez, a Chicago-area resident in the software industry, brought the lawsuit Thursday in Cook County Circuit Court, saying the state’s attorney’s office didn’t respond to his efforts to obtain the information through the state’s Freedom of Information Act.

The lawsuit, filed by attorney Matthew Topic of the law firm Loevy & Loevy, follows a similar one Martinez brought against the Chicago Police Department. So far, the police have revealed to Martinez that they spent hundreds of thousands of dollars since 2005 on cell-site simulators made by the Harris Corp. in Florida. The devices, with names like StingRay and KingFish, capture cellphone signals. Continue>>>
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April 8, 2015 12:50 PM

Chicago resident and political activist Freddy Martinez filed a second lawsuit against the Chicago Police Department in September for not responding to his Freedom of Information Act requests about how police are using cell phone trackers.

Across the country, citizens have growing concerns about the possibility of technology being used by law enforcement to invade their privacy. When pressed for more information about how law enforcement could be using potentially invasive technology, city officials have denied the requests of Martinez and other residents. 

“Law enforcement has to follow certain procedures, and those procedures are designed to allow the government to intrude upon otherwise private spaces, but only for compelling reasons,” said Hanni Fakhoury, a senior staff attorney for the Electronic Frontier Foundation. “That’s what the probable cause standard is supposed to do. It’s supposed to put a judge in between law enforcement and the public and make sure there’s a really good reason for law enforcement to be in your phone.” Continue>>>
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April 6, 2015 2:43 PM

A group of government watchdogs filed a lawsuit against College of DuPage on Thursday alleging numerous violations of the Illinois Freedom of Information Act.

The lawsuit -- filed by Edgar County Watchdogs and American Transparency or Open the Books -- claims the College of DuPage has been refusing valid FOIA requests, improperly withholding public documents and backdating responses.

The lawsuit calls into question the college's responses to a dozen FOIA requests sent in February and March. Continue>>>
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