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Freedom of Information Act

Obama Would Sign FOIA Reform Legislation

President Barack Obama would sign a Freedom of Information Act reform bill that has passed the U.S. Senate, Politico's Josh Gerstein reports. The bill "calls for a centralized portal to request records from all government agencies and writes into the law a presumption of openness that the Obama Administration adopted by executive order when he took office in 2009," Gerstein reports. Freedom of information advocates have been criticizing the Obama administration for having broken that promise of openness.

A similar bill has passed the House of Representatives and needs to be reconciled with the Senate FOIA bill.

FOIA Suit Seeks DOJ 'Confession of Error' in Supreme Court American Indian Cases

The California Indian Law Association has filed a Freedom of Information Act lawsuit to get more information about an alleged "confession of error" by former acting U.S. Solicitor General Neal Katya that his office made misrepresentations to the U.S. Supreme Court in American Indian law cases, The Legal Times' Tony Mauro reports. Katyal made his remarks in a video for the Federal Bar Association's annual Indian law conference in 2011.

According to the association's complaint, Katyal made a "'confession of error' for the solicitor general's role in two Supreme Court cases that were setbacks for tribal sovereignty: United States v. Sandoval, a 1913 decision that limited tribal property rights in New Mexico, and the 1955 ruling in Tee-Hit-Ton Indians v. United States, which rejected an Alaskan tribe's Fifth Amendment claim seeking compensation for timber taken on tribal lands," Mauro reports.

A confession of error could undermine those precedents, which have been cited hundreds of times in federal court, Mauro also reports.
 

ACLU Sues For Records Over TSA's Behavioral Detection Program

The American Civil Liberties Union is challenging the airport-security practice known as behavioral detection in which officers send "suspicious passengers" for additional screening, the Washington Post's Josh Hicks reports. The ACLU has filed a Freedom of Information Act lawsuit because the Transporation Secuirty Administration hasn't turned over any records about the practice, which advocates suspect leads to racial profiling.

#FOIA Bill On Track For Passage

The Washington Post's Josh Hicks reports that a bill to reform the Freedom of Information Act is on track to be passed by Congress as long as House leaders put a bill passed by the Senate on the schedule; similar legislation was passed by the House several months ago: "Reps. Darrell Issa (R-Calif.) and Elijah Cummings (D-Md.), who sponsored the House bill, urged their House colleagues to approve the Senate version and send it to the president. They said in a joint statement Tuesday that the measure would 'strengthen FOIA, the cornerstone of open-government law.'"

One of the key changes in the FOIA bill would limit exemption 5, which excludes from disclosure records because of attorney-client, attorney work product and deliberative process privileges. Open-government advocates say this exemption is abused by government agencies. Agencies would be required to release information after 25 years, Hicks reports.

FOIA Reform Bill Passes After Senator Drops Hold

After U.S. Sen. Jay Rockefeller dropped a hold on a bill to reform the Freedom of Information Act, the Senate passed a bill that would create a presumption of openness among government agencies, Politico's Burgess Everett reports. The House passed a similar bill earlier this year. The question is if the House finds time to consider the Senate bill during the current lame-duck session.

Privacy Exceptions Increasingly Invoked Against FOIA Requests

Privacy exceptions to the federal Freedom of Information Act have been invoked to reject records requests regarding Edward Snowden, Osama bin Laden and former House Majority Leader Tom DeLay, The Huffington Post's Matt Sledge reports: "Along with a 'deliberative process' exemption that allows an agency to withhold documents produced as part of a decision-making process, the government regularly cites privacy. The exemption often is used validly, to protect personnel or medical records. But other times, it papers over sensitive subjects the government would rather keep secret -- and not just Snowden."

Electronic Frontier Foundation Seeks $84K in Attorney Fees For FOIA Lawsuit Over Drones

The Electronic Frontier Foundation is seeking $84,000 in attorney fees as part of a Freedom of Information Act lawsuit, Courthouse News reports. EFF sued the Department of Homeland Security and obtained 700 pages on the use of drones by U.S. Customs and border Patrol.

EFF says it is entitled to the attorney fees because it alleges its FOIA lawsuit was the catalyst for the records to be released, Courthouse News also reports.

Case Could Leave Department of Justice Impervious From FOIA

Just Security's Steve Vladeck's writes that last week's decision finding a Department of Justice's Office of Legal Counsel memo is exempt from the Freedom of Information Act "may have the effect, unintended or otherwise, of insulating virtually all nonpublic OLC memos and opinions from FOIA requests–regardless of their subject-matter or sensitivity." (The opinion regards the FBI's use of exigent National Security Letters.)

Vladeck writes the D.C. Circuit reasoned that the memo was exempt under Exemption 5 for "'inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.'" The court said the memo was not the "working law" of the FBI. Documents developed under a federal agency's working law are not exempt under Exemption 5. The problem is that Office of Legal Counsel's "memos are generally viewed as authoritative guidance to the rest of the Executive Branch when it comes to the scope of the government’s legal authorities–whether or not they are 'adopted' as such," Vladeck concludes.

Obama 'Most Aggressive' Since Nixon in War on Leaks

Submitted by Amaris Elliott-Engel on Fri, 10/11/2013 - 07:58

President Barack Obama’s “war on leaks and other efforts to control information are the most aggressive” since President Richard Nixon’s administration, according to the author of a report commissioned by the Committee to Protect Journalists. The report, “The Obama Administration and the Press: Leak investigations and surveillance in post-9/11 America,” was released Thursday.

The report was written by Leonard Downie Jr., who was an editor involved in The Washington Post’s investigation of Watergate, along with reporting by Sara Rafsky.

The committee is usually focused on the state of the media in other countries, and this report is its first comprehensive report on relations between the American executive branch and the media.

Six government employees and two contractors have been prosecuted under the 1917 Espionage Act for allegedly leaking classified information to the press during the Obama administration, while there were only three prosecutions under all other presidents, the report said.

Following Wikileaks' disclosure of classified information, the Obama White House established an Insider Threat Task Force to develop a government-wide program for “’insider threat detection and prevention to improve protection and reduce potential vulnerabilities of classified information from exploitation, compromise or other unauthorized disclosure,’” Downey wrote.

As a result, every federal department and agency was told to set up Insider Threat Programs to prevent government workers from disclosing information without authorization.

Reporters also shared that their Freedom of Information Act requests face “denials, delays, unresponsiveness or demands for exorbitant fees, with cooperation or obstruction varying widely from agency to agency,” Downey said.

During a press conference on the report Thursday morning, Downey said that government employees are increasingly afraid to talk to the press and not just about classified information. Downey also said that Obama’s promise to be the most transparent presidency in American history has meant avoiding the institutional press in favor of a “sophisticated governmental public relations strategy” focused on social-media messaging and creating its own web-site content.

For example, photographers are allowed much less access to the president than in the past, and most photographs of Obama are from the White House institutional photographer, Downey said.

“None of these measures is anything like the government controls, censorship, repression, physical danger, and even death that journalists and their sources face daily in many countries throughout the world—from Asia, the Middle East and Africa to Russia, parts of Europe and Latin American, and including nations that have offered asylum from U.S. prosecution to [leaker Edward] Snowden,” Downie wrote in he report. “But the United States, with its unique constitutional guarantees of free speech and a free press—essential to its tradition of government accountability—is not any other country.”

Jack Goldsmith, a former lawyer for President Bush’s administration told Downey that leakers have to be prepared to face legal consequences, but that leaks ‘“serve a really important role in helping to correct government malfeasance, to encourage government to be careful about what it does in secret and to preserve democratic processes.’”

FOIA Records Show Gun Shop Had Problems Before Sandy Hook Shooting

The Connecticut Post found that the gun shop where the mother of the Sandy Hook shooter, Adam Lanza, had purchased the firearms used by Lanza in the Newtown, CT, elementary-school murders had a history of deficient compliance with gun-shop rules and regulations.  FOIA records showed that the deficiencies mainly related to poor record-keeping. The newspaper cited one instance in which the gun shop was unaware that a gun had been stolen from its premises.

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