As early as this fall, the U.S. government could have in place an interagency project using up-to-date technology to implement the Freedom of Information Act.

New technologies could increase proactive disclosure, speed responsiveness and cut backlogs. -db

From a commentary in OMB Watch, February 7, 2012.

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A federal district judge ruled that the FBI could not use a Freedom of Information Act exclusion in denying access to records about a civil rights era photographer who was an informant for the agency.

The judge said the FBI confirmed the relationship with their response to the FOIA request so could not then withhold the records. -db

From The Reporters Committee for Freedom of the Press, February 1, 2012, by Rachel Bunn.

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The Electronic Privacy Information Center (EPIC) has sued the Justice Department and the FBI claiming that they refuse to release information on the FBI’s surveillance of citizens who have shown support for or interest in WikiLeaks.

EPIC made the Freedom of Information Act complaint in federal court. -db

From the Courthouse News Service, January 31, 2012, by Iulia Filip.

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The U.S. Department of Housing and Urban Development will get another chance to protect the identity of informants in the investigation of a real estate kickback scheme in Hawaii.

HUD had lost a round in an Hawaiian court when a three-judge panel said the agency failed to explain why it redacted the names of informants in documents requested under the Freedom of Information Act. -db

From the Courthouse News Service, January 18, 2012, by Tim Hull.

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The Electric Freedom Foundation is suing the Department of Transportation for its records on drones operating in U.S. airspace. EFF claims the drones are used for surveillance of U.S.  citizens and are a matter of great public concern. -db

From The Washington Post, January 13, 2012, by Jason Ukman.

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A federal judge in Washington, D.C. found that the Justice Department could not withhold files from the nonprofit Citizens for Responsibility and Ethics of their criminal investigation of U.S. Rep. Don Young of Alaska.

The Justice Department did not file any charges against Young and withheld the files on privacy grounds. -db

From the Anchorage Daily News, January 11, 2012, by Richard Maurer.

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Q: I am considering a request for the 1099 form issued by a local agency to their general counsel. They are the worst violators of CPRA I have ever experienced. If I do not cite very specific statute and write the request so carefully that virtually all possibilities of misconstruction are eliminated, I will get a “no such records exist,” which is their default answer until they are challenged and provided “clarification.”

A: Any qualifying records must be disclosed unless a specific provision of the California Public Records Act or other law exempts them from disclosure. However, there are so many highly-specific exemptions, that it can be difficult to predict whether an exemption for 1099 forms has been created.

For instance, there is the possibility that some provision of the federal Internal Revenue Code has created an exemption for the disclosure of 1099s (they are federal forms, after all). I am not aware of any, but the possibility cannot be eliminated.

It’s also worth noting that generally tax forms are not public to the extent that you could not get them from the IRS. There certainly is a chance that this would relieve a state agency of any obligation to do the same.

Bearing that in mind, there may be an alternative method to get the information you desire. Personnel files are generally exempted under Gov’t Code § 6254(c); however, the California Supreme Court has held that the names and salaries of individual public employees are generally required to be made public.

The International Federation of Professional Engineers v. Superior Court, 42 Cal. 4th 319 (2007) specifically discusses obtaining the names and salaries of employees making more than $100,000, so at the least, this will provide you with access to the salary information of highly-paid employees.

Citing that case and requesting access to the salary/financial information to the general counsel of the local water agency should get you to the 1099s (barring an Internal Revenue Code exemption).

If the 1099s aren’t available through that avenue, then at the least, you should be able to get pay stubs or other equivalent records.

I encourage you to file a written request for the records you seek because a written request requires the agency to provide a written response. Gov’t Code § 6255(b). If they reject your formal request, their response will need to identify the exemption or other justification for their denial. You may want to consider pre-empting their “no such records exist” response and remind them of this requirement.

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

The Center for Constitutional Rights wants the responsible government agencies to release the interrogation tapes of accused 9/11 hijacker, the only detainee at Guantanamo the government admits to torturing.

Charges that the man plotted to join the 9/11 attacks were dropped by the government in 2008 “without prejudice.” -db

From the Courthouse News Service, January 10, 2012, by Adam Klasfeld.

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There were four cases over the Freedom of Information Act that promoted transparency in 2011 according to the Electronic Freedom Foundation.

The cases were Milner v. Department of Navy, FCC v. AT&T, Islamic Shura Council of S. Cal. v. FBI and National Day Laborer Organizing Network v. ICE.

From a commentary for the Electronic Frontier Foundation, December 31, 2011, by Jennifer Lynch and Mark Rumold.

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The U.S. Circuit Court of Appeals in Washington, D.C. ruled that the CIA had the right to refuse to confirm or deny existence of records named in a Freedom of Information Act request. The refusal is called a Glomar response.

The CIA had refused to provide information to a US. citizen seeking information on his grandfather, an Iceland citizen who allegedly was associated with the Icelandic Communist Party. -db

From The Reporters Committee for Freedom of the Press, December 22, 2011, by You-Jin Han.

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The quest for national security after 9/11 has resulted in a number of secret agencies, Congressional committees, courts and even laws argues the American Civil Liberties Union.

The ACLU claims that these practices deprive lawmakers and the public of information needed to check abuses and to make policy. -db

From a commentary for the American Civil Liberties Union, December 19, 2011.

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The Central Intelligence Agency says it will now consider a Freedom of Information Act request for documents on Open Source Works, a new CIA open source intelligence division.

An historian had asked for the charter of Open Source Works with the reply that the CIA could not confirm or deny the existence of the charter. -db

From Secrecy News, December 14, 2011, by Steven Aftergood.

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A federal judge said the Environmental Protection Agency did not have to release studies about lingering oil in the Prince William Sound and the Gulf of Alaska, the site of the devastating Exxon Valdez spill over 21 years ago.

Exxon Valdez had requested the information through the Freedom of Information Act. -db

From the Courthouse News Service, December 9, 2011, by Ryan Abbottt.

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After Ben Bernanke of the Federal Reserve sent a letter to lawmakers criticizing Bloomberg News for “egregious errors” in a story on the bank bailout, Bloomberg responded with a detailed rebuttal of the key charges.

Among other issues, the rebuttal addressed factual errors, disputes over transparency, and fairness in reporting. -db

From Bloomberg News, December 7, 2011, edited by Robert Friedman and John Voskuhl.

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The Obama administration is still insisting that cables WikiLeaks released last year are classified even though the cables were released by the State Department in compliance with a Freedom of Information Act request.

The classified information concerned targeted killings, detention at Guantanamo, torture and rendition. -db

From a commentary for the American Civil Liberties Union, December 7, 2011, by Nathan Freed Wessler and Anna Estevao.

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A Gawker reporter is suing the National Archives and Records Administration for information about how former President George W. Bush and his vice president, Dick Cheney tried to shape public opinion during their tenure.

The reporter is not seeking the Bush administration documents protected under law from disclosure but rather the identities of those who sought records. -db

From the Courthouse News Service, December 1, 2011, by Adam Klasfeld.

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A federal district court in California objected to the FBI’s practice of withholding information from the court whenever it thinks it serves the interest of national security.

While the court said national security interests could justify withholding the information about targeting Muslim organizations from the Islamic Shura Council and its attorneys, it could not block the court from seeing the records. -db

From a commentary for the Electronic Freedom Foundation, November 21, 2011, by Jennifer Lynch.

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The FBI has refused a Freedom of Information Act request for documents relating to the use of an inside informant on the work of  Common Ground Relief, a group dedicated to Hurricane Katrina relief and critical of the Bush administration’s response to the disaster.

The FBI said releasing the documents would violate the privacy of its informant. -db

From the Courthouse News Service, November 23, 2011, by Sarina Canfield.

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A federal district judge ruled that the Justice Department does not have to provide a Muslim civil rights group with FBI investigative guidelines.

The judge held that revealing the guidelines would compromise the FBI’s ability to conduct investigations and prosecutions. -db

From  The Reporters Committee for Freedom of the Press, November 15, 2011, by J.C. Derrick.

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The Justice Department has refused a request by the Electronic Frontier Foundation for an important legal opinon on the use of “exigent letters,” a method of requesting information that includes telephone company records.

In refusing to disclose the legal opinion, the DOJ cited national security concerns. -db

From Politico, November 11, 2011, by Josh Gerstein.

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A federal judge ruled that the FBI could withhold data from its terrorism investigations from a New York Times investigative reporter.

The judge said The New York Times had not rebutted the FBI’s statement that they had fulfilled requests made under the Freedom of Information Act except for that under FOIA exemption. -db

From the Courthouse News Service, November 10, 2011, by Adam Klasfeld.

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The American Immigration Council is charging that Homeland Security is blocking the release of records alleged to show how they interfere with undocumented people’s right to legal counsel.

The Council filed a request for the records under the Freedom of Information Act but has only received photocopies of pages from manuals and not the records of conversations between customs and non-citizens. -db

From the Courthouse News Service, November 10, 2011, by Ryan Abbott.

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Reacting to pressure from legislators and open government advocates, the Department of Justice withdrew a proposal to allow government agencies to respond to Freedom of Information Act requests with false denials. The proposal would have allowed them to deny that records exist when they actually did. -db

From a press release from the American Civil Liberties Union, November 3, 2011.

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After uncovering $60 billion in contractor waste and fraud in Iraq and Afghanistan, the Commission on Wartime Contracting buried its internal records for 20 years.

The Commission did release 8 reports and publish recommendations to avoid waste and fraud, but the decision to block access to the internal records and source material prevents the public and nonprofits from building on the work of the Commission, writes Jake Wiens, an investigator for POGO.  -db

From a commentary for the Project on Government Oversight (POGO), November 1, 2011, by Jake Wiens.

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A federal judge ruled that an  immigrant rights group could obtain an internal memo from the U.S. Immigration and Customs Enforcement (ICE) concerning the legal justification for the Secure Communities deportation program.

Using the Freedom of Information Act, the group sued five federal agencies for the memo. -d

From the Courthouse News Service, October 26, 2011, by Adam Klasfeld.

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The Electronic Freedom Foundation sued the Department of Justice for its failure to release documents detailing its interpretation and use of Section 215 of the U.S.A. Patriot Act. The section allows the FBI to obtain a court order for “any tangible thing” related to a terrorism investigation.

The EFF claims the government has been misusing the Patriot Act to investigate citizens without their knowledge. -db

From the Courthouse News Service, October 27, 2011, by Maria Dinzeo.

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The Justice Department has proposed a rule change for the FOIA to allow government agencies to deny that records do not exist when they do. As it stands now the government can withhold information and issue a Glomar denial that says they neither confirm nor deny the records exist.

Open government advocates say that the rule change would deliver a blow to transparency in that with the proposed rule, those seeking information would be inclined to forego appealing denial of the request concluding that the information doesn’t exist. -db

From ProPublica, October 24, 2011, by Jennifer LaFleur.

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Q: I’m an investigative reporter trying to obtain information from the Department of Homeland Security and Customs and Border Protection (about 32 miles of the northern border are considered secure) and about the number of drugs, guns and weapons crossing over the border. I also need information on staffing levels compared to the southern border and drug, weapons, guns total. They say some information can’t be provided because it’s “law enforcement sensitive.” Is that a valid excuse? If not, how do I request the information I need?

A: For starters, if you have not already done so, you may want to submit your requests, in writing, to the appropriate agencies, pursuant to the Freedom of Information Act. Submitting your requests in writing should result in a written response, which will make it easier to respond to each agency’s purported reasons for withholding the information you seek.

Under FOIA, each agency is required to determine within 20 days (excluding Saturdays, Sundays, and legal public holidays) after the receipt of a request whether to comply with the request. 5 U.S.C. § 552(a)(6)(A)(i).

The actual disclosure of documents is required to follow promptly thereafter. The FOIA permits an agency to extend the time limits up to 10 days in “unusual circumstances” (i.e., the need to collect records from remote locations, review large numbers of records, and consult with other agencies). 5 U.S.C. § 552(a)(6)(B)(i).

The agency is supposed to notify the requester whenever an extension is invoked, although in practice this is not always done. Moreover, the FOIA provides a mechanism to deal with unusually burdensome requests which an agency would not be able to process within the prescribed time limits.

For such requests, the FOIA requires that an agency inform the requester that the request cannot be processed within the time limits and provide an opportunity for the requester to limit the scope of the request so that it may be processed within time frame, or negotiate a deadline for processing the request. 5 U.S.C. § 552(a)(6)(B)(ii). Again, these statutory time frames are not always met.

U.S. Customs and Border Patrol provides a guide to requesting information from the agency under FOIA, available here: http://www.cbp.gov/xp/cgov/admin/fl/foia/, as does the Department of Homeland Security: http://www.dhs.gov/xfoia/editorial_0579.shtm.

That said, it sounds like you already have a sense of how each of these agencies might respond to your written request. The FOIA exempts certain law enforcement records from disclosure, as follows:

[R]ecords 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 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,

(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 of the law, or

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

Depending on the substance of the specific information that you seek, it is possible that one of these exemptions apply. It does not seem that any of the exemptions listed above would encompass information pertaining to the quantities of drugs and guns that cross the border.

However, specific information related to law enforcement efforts may be exempt, since these might “disclose techniques and procdures for law enforcement investigations or prosecutions.” At any rate, ideally, the agency should explain how each piece of information sought fits within this exemption.

For more information related to the FOIA, here are some resources that you might find useful:

Reporters Committee for Freedom of the Press: http://www.rcfp.org/foia/

National Freedom of Information Coalition: http://www.nfoic.org/states

The FOIA Project (Transactional Records Action Clearinghouse): http://FOIAproject.org

Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.

Billionaire Dallas Mavericks owner Mark Cuban is bankrolling a website run by Chris Carey, a Michigan journalist, with information about government travel spending. The site is  JunketSleuth.com and offers searchable records of travel spending of federal officials and Congressional leaders.

JunketSleuth’s “main purpose is transparency and accountability,” said Carey. “People in Washington are saying we have this terrible financial crisis now, both with annual budget deficits and long-term federal debt issues. And yet some people in Washington are spending like there’s no problem.” -db

From AnnArbor.com, October 23, 2011, by Nathan Bomey.

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The U.S. Supreme Court declined without comment to review a case barring a legal journal from obtaining gruesome video and autopsy photos of a Colorado inmate murdered by his cellmates.

The Prison Legal News had applied to see the photos under the Freedom of Information Act but the 10th Circuit Court of Appeals denied the request under the privacy exemption to the act. -db

From the Courthouse News Service, October 17, 2011, by Barbara Leonard.

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Citizens for Responsibility and Ethics in Washington (CREW) is suing the Securities Exchange Commission  for documents requested under the Freedom of Information Act showing what the SEC is doing to improve detection and enforcement on financial fraud.

CREW submitted the FOIA request to the SEC in June but has received no documents on their request. -db

From The Hill, October 13, 2011, by Peter Schroeder.

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The Obama administration is appealing a judge’s ruling that Secret Service records of White House visitors come under the Freedom of Information Act and must be disclosed to the public.

The Justice Department claims the records are presidential records not agency records so not subject to the FOIA. -db

From Politico, October 14, 2011, by Josh Gerstein.

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A former diplomat provides a practical guide for reading diplomatic cables released by WikiLeaks with perspectives for working journalists and others on the value of the information. -db

From Wired, October 7, 2011, by Daniel Serwer.

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The American Civil Liberties Union and allies lost a bid in federal court to find out who was responsible for destroying nearly 100 videotapes of interrogations in 2001 of al Qaeda leaders.

The judge noted that the CIA had erred in destroying the videotapes but had since made changes to prevent the destruction of videos in the future. -db

From the Courthouse News Service, October 6, 2011, by Adam Klasfeld.

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A panel of health and science journalists said that many government agencies key to their investigations are not supporting President Obama’s transparency pledge. Delays in releasing data make it impossible for reporters to meet deadlines.

The journalists complained that when requests are made, decisions often have to be made at the highest level of political command by those with higher priorities than to deal with media requests. -db

From The Reporters Committee for Freedom of the Press, October 4, 2011, by Kirsten Berg.

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An opponent of the Keystone pipeline proposed to carry oil from the tar sands area of Canada to the United States says that the Obama administration has been conducting  secret meetings with the oil industry, this confirmed by documents obtained through a Freedom of Information Act request.

“…Barack Obama said he would ‘end the tyranny of oil’; he also said he was going to end back-room dealing. His decision about the Keystone pipeline project, which is expected by year’s end, seems like one last chance to show he actually meant it,” writes environmental scholar Bill McKibben in an op-ed for The New York Times.

From an op-ed for The New York Times, October 3, 2011, by Bill McKibben.

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A federal judge ruled that an author could proceed with his lawsuit against the State Department and other government agencies who allegedly ignored a requirement to provide Freedom of Information Act requesters estimates of the time it would take to fulfill requests.

The author was after information about the Iraq oil industry. -db

From Politico, September 29, 2011, by Josh Gerstein.

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The Electronic Frontier Foundation is suing the government for records of who is on the Intelligence Oversight Board, the civilian board responsible for reviewing misconduct reports for federal intelligence agencies.

The suit  is part of EFF’s ongoing investigation of intelligence violations as Congress considers changes to current oversight laws. -db

From a press release from the Electronic Frontier Foundation, September 27, 2011.

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The Justice Department filed a motion in federal court claiming that the death photos and videos of Osama bin Laden should be exempted from public disclosure under the Freedom of Information Act.

The CIA said that releasing the graphic images of bin Laden would “cause harm to the national security of the United States” by provoking acts of revenge against the U.S. -db

From The Reporters Committee for Freedom of the Press, September 27, 2011, by You-Jin Han.

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The Obama administration has reduced the backlog of  Freedom of Information Act requests but still faces a large number of unfulfilled requests. Under a new plan, the administration wants to improve the processing of the requests and also address other crucial issues in government openness including strengthening whistleblower protections and making more information available.

Writing for The Reporters Committee for Freedom of the Press, Kirsten Berg quotes John Wonderlich of the Sunlight Foundation who likes the plan but sees great challenges ahead, “The experience of the Open Government directive has shown us that implementation is much harder than getting a political declaration. He has got a fantastic declaration, but the challenge now is moving into the implementation.” -db

From a commentary from The Reporters Committee for Freedom of the Press, September 26, 2011. by Kirsten Berg.

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