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Everything you wanted to know but were afraid to ask

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Presentation on theme: "Everything you wanted to know but were afraid to ask"— Presentation transcript:

1 Everything you wanted to know but were afraid to ask
FOIA Litigation Everything you wanted to know but were afraid to ask

2 Receipt of Suit How does DoD learn that the agency has been sued?
Who will represent the agency in court? What part does the agency’s general counsel’s office play? Federal Programs Branch, Civil Division, U.S. Department of Justice

3 Jurisdiction & Venue Jurisdiction United States District Courts Venue
In which federal jurisdiction may a requester file a lawsuit? VENUE-Where the complainant resides, or has his principal place of business, or in which the agency records are situated, or in the District of Columbia

4 Pleadings The Complaint Who is a proper party defendant?
Service of process The Answer Filed within 30 days of service upon the proper party Must respond to each allegation Must assert affirmative defenses De novo standard of review What is the administrative record? Deference by court on matters of national security Fee waiver issues Arbitrary and capricious standard of review in reverse FOIA actions Statute of Limitations 6 years What are administrative remedies? How does a requester exhaust the administrative remedies? Constructive exhaustion Payment of processing fees Failure to exhaust administrative remedies Mootness "improperly" (2) "withheld"; (3) "agency records." Court orders release of records to this requester

5 Discovery What is discovery? Forms of discovery:
Interrogatories Requests for admissions Depositions Scope of discovery in FOIA lawsuits Adequacy of search and discovery

6 What is the suit about? Generally, there are 3 reasons why suits are filed Denial of expedited processing/fee waiver Complaints over the adequacy of DoD’s search/response Complaints over the redactions taken Law provides 20 business days to respond

7 What is the suit about? Denial of expedited processing
Some requesters ask DoD to grant expedited processing. If the FOIA office denies that request, a suit may be filed. Standard to grant expedited processing: can the requester can show an exceptional need or urgency for the info requested Admin determination made by FOIA office Courts have granted expedited processing when exceptional circumstances are surrounding a request, such as jeopardy to life or personal safety or threatened loss of substantial due process rights.

8 What is the suit about? Denial of fee waiver
Most requesters must pay fees Standard for granting fee waiver: if disclosure would significantly increase public understanding about government operations/activities and is not primarily in the commercial interest of the requester DOJ FOIA training manual has a good background section on fees, including the types of fees and which organizations qualify for which set of fees

9 Court decides EP/Fee Waiver issue
Cases resolved by motions practice If the court grants EP, then requester goes to end of EP queue If the court denies, they go to end of regular queue If the court grants fee waiver request, DoD must process If the court denies fee waiver request, we do not process without a prior commitment to pay, and do not provide docs without $

10 What is the suit about? Adequacy of Search
Agencies must conduct a search that is “reasonably calculated to uncover all relevant documents.” Must search everywhere it is reasonably likely that responsive records exist

11 Adequacy of Search/Response
Factors: Were the correct components tasked? Are we satisfied that they conducted an adequate search, not only where they searched, but what they searched for?

12 What is the suit about? What DoD redacted
At some point in the litigation process, plaintiff complains about the redactions that we have taken These issues are best resolved in our favor when you make sure that our positions are consistent across DoD and ensure that the redactions are supported by adequate Vaughn indices and Declarations

13 Complaints over Redactions
FOIA requires that agencies review each document, line by line, to determine if there is non-exempt information that can be segregated out for release Courts are often interested in ensuring that the agency has complied with this requirement 5 USC 552(b)

14 Redactions Logistics:
A clean copy of the documents should be bates stamped before redactions begin Redactions should be marked on the document with the FOIA exemption being claimed in the margin

15 Referrals/Consultation
Referrals-your file contains documents that originated with another agency. Consultation-your file contains documents that contain information that originated with another agency.

16 Referrals Logistics Are the referrals going directly from component to component/agency or are they going through the OSD FOIA office? Who is going to respond to the requester? Advantages of going through the FOIA office is that you know where things are Disadvantages are that it adds time to the process

17 FOIA Exemptions B(1)-exempts material that is currently AND properly classified

18 Compilation Compilation/mosaic-providing apparently harmless pieces of information that can be cobbled together to reveal classified info Compilation is a valid reason to exempt info

19 FOIA Exemptions B(2) Low-exempts trivial matters that the public would have little interest in (today’s lunch menu) High-exempts material that would allow the recipient to circumvent DoD rules and/or procedures (Rules of Engagement)

20 FOIA Exemptions B(3)-exempts material that is identified by statute as being exempt from release Example-10 USC 130(b) protects names of DoD personnel in overseas, sensitive or routinely deployable units

21 FOIA Exemptions B(4)-exempts material that is proprietary to a commercial entity-think Trade Secrets Short answer is that if it appears that the material is proprietary, we need to notify the entity that provided it to us and give them the opportunity to contest its release

22 FOIA Exemptions B(5)-”Inter-agency or intra-agency documents that would not be available by law to a party other than an agency in litigation with the agency.”

23 FOIA Exemptions B(5)-Pre-decisional AND deliberative material OR
Material that would be protected under civil discovery rules Attorney work-product privilege Attorney client privilege

24 FOUO Stamping FOUO on a document does not carry the day
You need to analyze the document to see if it fits under one or more of the FOIA exemptions (usually b5)

25 FOIA Exemptions B(6)-exempts privacy material Medical records
Personally identifying information (ssn’s, addresses) To fit under the exemption, disclosure of the information would need to constitute a clearly unwarranted invasion of personal privacy

26 Names Policy-Exemption b(6)
DoD names policy-2001 DepSecDef memo Names of military personnel below the GO/FO rank are usually redacted Names of civilians GS-15 and below are usually redacted Exception for those who routinely deal with the public (PAO, base commanders) We have been sued several times over this policy and have won each suit

27 FOIA Exemptions B(7)-exempts law enforcement material
Protects material found in “records compiled for law enforcement purposes, the disclosure of which would result in harm Six sub-exemptions (a-f)

28 Now what? You’ve ensured an adequate search;
You’ve taken the appropriate exemptions; A copy of the responsive documents has been provided to the plaintiff; How do you resolve the litigation?

29 Summary Judgment FOIA litigation resolved by motion
Usually no disputed facts, only question of how the law applies to facts No live testimony, submission of sworn statements Vaughn declarations

30 Vaughn Index and Declarations
All redactions must be described in a Vaughn index and supported by a declaration (similar to an affidavit) If adequately prepared, great deference is given by the court to the declarations and Vaughn indices when determining if summary judgment is appropriate

31 Vaughn index Very similar to a privilege log
Index must list all documents for which any redactions are taken and provide the basis of the redactions Index must be detailed enough for a judge who knows nothing about the case to decide whether or not the redactions are appropriate under the law

32 Declarations Identify declarant-why is this person signing?
Set forth procedural history of request Describe search for responsive records Describe records (or portions) withheld Identify exemptions claimed and provide all required elements to claim that exemption

33 Vaughn Declarations Contents: Identify declarant
State the number of records/pages being withheld and the number of pages released (in full or in part) Set forth procedural history of request, including relevant correspondence Describe the search for responsive records

34 Vaughn Index The Vaughn Index
Describe records or portions of records withheld Identify each exemption claimed Connect each item withheld with the exemption asserted Demonstrate that all required elements of each exemption are satisfied

35 Types of Vaughn Indices
Traditional Vaughn index Document-by-document, page-by-page, line-by-line description of withheld information Useful when there are relatively few documents at issue

36 Types of Vaughn Indices
“Coded” Index Useful for high-volume, multiple-exemption cases Two parts: Assigns an exemption code to each category of withheld information, for example (b)(7)(C)-1 for names of FBI Special Agents, (b)(7)(C)-2 for information that would identify a subject of an FBI investigation Attach copies of redacted records with appropriate code marked next to each deletion

37 Types of Vaughn Indices
Categorical or generic index Most frequently used in Exemption 7(A) cases Assigns a functional category to each type of record involved and describes how disclosure would harm on-going law enforcement proceedings

38 Types of Vaughn Indices
“Vaughning” only a sample of records Used with a very large number of documents Requester and court must agree to using this type of declaration Sample by full document rather than by page If court disapproves of application of exemptions, may need to reprocess all records

39 Alternative to Vaughn Index
FOIA expressly authorizes in camera inspection of records as alternative to filing Vaughn declaration Judge does not need a security clearance to review classified material, but law clerks do Physical security precautions needed

40 Alternative to Vaughn Index
In camera inspection conducted at discretion of the judge Done most often when agency’s declaration found to by insufficient or when agency is found to have acted in bad faith

41 Special “Vaughning” Problems
Exemption 1 “Foreign government information”—identify country, if possible and/or relationships between nations that could be impaired-harm is presumed. “Intelligence activities, sources or methods” If possible, state whether an activity, a source or a method is at issue If possible, state general nature of the activity, source or method

42 Types of Vaughn Declarations
“Glomar” denial declaration Used only when an agency cannot confirm or deny the existence of records because it would reveal an exempt fact “Records withheld” section of declaration explains only what abstract fact would be disclosed if agency confirmed that there were or were not records Used most often for targeted requests involving Exemptions 1, 6 or 7C Glomar Response Allows an agency to neither confirm nor deny the existence of requested information whenever its existence or nonexistence is itself classified Typically utilized in intelligence or law enforcement information

43 Special “Vaughning” Problems
Exemption 2 Explain why information is “internal” State whether withheld information is “high 2” or “low 2,” and if “high 2,” state how circumvention of agency regulation, practice, or program would result from disclosure

44 Special “Vaughning” Problems
Exemption 3 Identify the federal statute being applied Explain how the statute applies to the withheld information

45 Special “Vaughning” Problems
Exemption 4 When agency is relying on substantial competitive harm argument, you might include a declaration from submitter explaining competitive harm Make clear that agency considered submitter’s views on substantial competitive harm but made independent decision

46 Special “Vaughning” Problems
Exemption 5 Explain whether the communication was inter- or intra-agency Deliberative process privilege Explain why information is predecisional Explain why information is deliberative State that all factual information has been disclosed or explain why it has not

47 Special “Vaughning” Problems
Attorney work product privilege Identify on-going or anticipated litigation and how document pertains to it Attorney client privilege Explain how disclosure would identify confidential information provided by a client to the attorney in order to obtain legal advice

48 Special “Vaughning” Problems
Exemption 6 Describe privacy interest Whose interest is involved and how is this personal information Describe any particular harm from disclosure If information is old, address whether subject is still living Discuss whether there is any legitimate public interest, and assign it a magnitude

49 Special “Vaughning” Problems
Exemption 6 (cont’d) State that the agency has balanced the privacy interest and the public interest, and that the privacy interest prevails Exemption 7 (all subparts) State the law enforcement purpose for which the records were created

50 Special “Vaughning” Problems
Exemption 7 (cont’d) (b)(7)(A) State that all categories of information which could not reasonably be expected to interfere with law enforcement proceedings have been disclosed Describe the information withheld in functional categories Explain how disclosure of each function category could reasonably be expected to cause an identifiable harm

51 Special “Vaughning” Problems
(b)(7)(C) See Exemption 6 above (b)(7)(D) If not a criminal/national security investigation, state that only information that could reasonably be expected to identify the confidential source has been withheld If a criminal/national security investigation, describe investigation without revealing exempt information

52 Special “Vaughning” Problems
(b)(7)(D) State whether the confidential source was given an express or implied promise of confidentiality If dealing with implied promise of confidentiality, state the circumstances giving rise to the implied promise

53 Declarations The declaration must describe all of the types of redactions set out in the Vaughn index and explain why they were taken Review sample declarations to get a sense of what needs to be provided Drafts need to be provided to the AUSA before they are signed. Invariably, there are numerous changes suggested by the AUSA

54 Declarations If a component is claiming that portions of the information is classified, a declaration will need to come from the Original Classifying Authority or his/her designee The OCA will need to state that they have reviewed the material and determined that it is still properly classified

55 Duty to Segregate Declaration must specifically state that agency has disclosed all reasonably segregable non-exempt information If possible, give examples of the agency’s efforts to disclose segregable non-exempt information If possible, describe the non-exempt information that was not disclosed

56 Waiver of Exemptions in Litigation
Because judicial review is de novo, exemptions may be asserted in litigation even thought they were not previously relied upon in the administrative stage of processing the request All exemptions must be asserted in the agency’s Vaughn declaration

57 Waiver of Exemptions in Litigation
District courts very reticent to permit assertion of new exemption after adverse decision Unlikely that agency will be permitted to assert a new exemption on remand after a court of appeals rules that the agency’s first asserted exemption inapplicable

58 OPEN Government Act of 2007 Section 3 expands definition of news media
Section 4 attorney fees Section 5 disciplinary actions for arbitrary and capricious denials of requests Section 6 new time limits

59 OPEN Government Act of 2007 Section 3-check with OFOI on who is a representative of the news media and what that means for the processing of their request

60 OPEN Government Act of 2007 Section 4-Attorney Fees
Substantially prevailed if plaintiff obtained relief through either judicial order or enforceable written agreement or consent decree OR voluntary or unilateral change in position by the agency Fees are now paid by agency funds, rather than DOJ claims and judgment fund Section 4 of the Open Government Act amends 5 U.S.C. § 552(a)(4)(E) by adding two new elements to the attorney fees provision of the FOIA. The FOIA’s pre-existing attorney fees provision provides that a court “may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred” in cases in which the “complainant has substantially prevailed.” 5 U.S.C. § 552(a)(4)(E). Section 4 of the Open Government Act first defines the circumstances under which a FOIA plaintiff can be deemed to have “substantially prevailed.” It adds a provision that states that for purposes of this subparagraph, a FOIA complainant has “substantially prevailed” if the complainant “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.” Second, section 4 of the Open Government Act also changes the method by which attorney fees and costs are paid to FOIA plaintiffs.  Such amounts will no longer be paid by the Claims and Judgment Fund of the United States Treasury.  Instead these fees and costs will be paid directly by the agency, using funds “appropriated for any authorized purpose.”

61 OPEN Government Act of 2007 Section 5-Disciplinary actions
If court orders production of any material and finds that the agency acted arbitrarily and capriciously, Special Counsel shall promptly institute a proceeding to determine if disciplinary action is appropriate against the employee who was primarily responsible for withholding

62 OPEN Government Act of 2007 Section 6-New time limits
Time starts when either received by the correct FOIA office or within 10 days of being received by any component FOIA office Can make one request to requester for additional info, and can wait for that info Can also toll while clarifying fee issues Specifically, section 6(a) provides that the statutory time period commences “on the date on which the request is first received by the appropriate component of the agency, but in any event not later than ten days after the request is first received by any component of the agency that is designated in the agency’s regulations under this section to receive requests.” This provision addresses the situation where a FOIA request is received by a component of an agency that is designated to receive FOIA requests, but is not the proper component for the request at issue. In such a situation, the component that receives the request in error – provided it is a component of the agency that is designated by the agency’s regulations to receive requests – has ten working days within which to forward the FOIA request to the appropriate agency component for processing. Once the FOIA request has been forwarded and received by the appropriate agency component – which must take place within ten working days – the statutory time period to respond to the request commences. Section 6(a) further provides for those circumstances when an agency may toll the statutory time period.  Specifically, an agency “may make one request to the requester for information and toll” the statutory time period “while it is awaiting such information that it has reasonably requested from the requester.”  The agency may also toll the time period “if necessary to clarify with the requester issues regarding fee assessment.”  There is no limit given for the number of times an agency may go back to a requester to clarify issues regarding fee assessments – which sometimes may need to be done in stages as the records are being located and processed.  In both situations, section 6(a) specifies that the requester’s response to the agency’s request “ends the tolling period.”


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