July 24, 2008
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January 1, 2008
Bush Signs FOIA Amendments
President George W. Bush signed into law the OPEN Government Act Dec. 31, marking the first time the FOIA has been amended in ten years. The new amendments restore the attorney's fees eligibility criteria that existed before the Supreme Court's Buckhannon ruling and prohibit agencies from collecting fees if they do not respond to a request within the statutory 20-day time limit. The amendments also provide a tracking system for requests and codify the positions of Chief FOIA Officer and FOIA Public Liaisons that first appeared in the Bush executive order issued in December 2005. The amendments create an ombudsman, designed to resolve disputes short of litigation, at the National Archives and clarify the status of media requesters. Finally, the amendments direct OPM to study how to encourage federal employees to choose FOIA as a career path by creating greater incentives and recognition.
December 20, 2007
New York Court of Appeals Rejects Reporters Committee Rationale
The New York Court of Appeals has rejected the U.S. Supreme Court's Reporters Committee rationale in finding that Suffolk County failed to show why disclosure of an electronic compilation of property records was an unwarranted invasion of personal privacy. The high court ruled that both the trial court and appellate courts improperly shifted the burden of proof to commercial vendor Data Tree to show why Suffolk County had acted improperly. The Court of Appeals also ruled that Data Tree's motive for requesting the records was irrelevant to a determination of whether or not the records were exempt. The court also rejected the County's claim that furnishing an electronic version of the records would require it to create a new record. The court pointed out that "a simple manipulation of the computer necessary to transfer existing records should not, if it does not involve significant time or expense, be treated as creation of a new record." (Data Tree, LLC v. Edward P. Romaine, No. 173, New York Court of Appeals, Dec. 18)
December 19, 2007
Congress Passes FOIA Amendments
The House passed a revised set of FOIA amendments Dec. 18 shortly after the Senate had acted as well. Although the House passed its set of amendments in March and the Senate passed a compromise bill in August, House "pay-as-you-go" rules required that body to revise the Senate bill to provide alternative funding for two provisions -- the potential increase in attorney's fees due to rejection of the Supreme Court's Buckhannon decision as the threhold standard for awarding fees, and to replace the loss of fees agencies would no longer be able to charge if they did not respond within the 20-day statutory time limit. The amendments passed the Senate by unanimous consent and the House by a voice vote. It seems likely that President Bush will sign the legislation or allow the bill to become law by failing to sign or veto it before the upcoming congressional recess.
October 8, 2005
Court Orders Release of Abu Ghraib Photos
Judge Alvin Hellerstein has ordered the Defense Department to disclose redacted versions of the prisoner abuse photos taken at Abu Ghraib prison by reservist Joseph Darby. Rejecting the government's claim that the photos were protected by Exemption 7(F)(harm to physical safety), Hellerstein noted that "supression of information is the surest way to cause its significance to grow. Clarity and openness are the best antidotes, either to dispel criticism if ot merited or, if merited, to correct such errors as may be found." Finding that the invocation of Exemption 7(F) had not relation to law enforcement, but was instead being used to suppress a debate about speech, Hellerstein observed that "my task is not to defer to our worst fears, but to interpret and apply the law, in this case the Freedom of Information Act, which advances values important to our society, transparency and accountability in government." (American Civil Liberties Union, etal. v. Department of Defense, etal. Civil Action No. 04 Civ. 4151 (AKH), U.S. District Court for the Southern District of New York, Sept. 29)
May 4, 2004
District Court Rejects Govt Claims for Withholding Energy Task Force Documents
Judge Paul Friedman has rejected several important government claims for withholding records pertaining to the Cheney energy task force. Finding that employees of the Energy Department who staffed the task force were agency employees, Friedman said any records they created while working for the task force were agency records and must be searched for responsive materials. He also rejected government claims that recommendations sent from agencies to the task force were protected under Exemption 5 (deliberative process privilege), noting that since the task force was a non-agency it did not meet the threshold test requiring the records to be inter- or intra-agency records. (Judicial Watch and Natural Resources Defense Council v. Department of Energy, Civil Action No. 01-0981 (PLF), U.S. District Court for the District of Columbia, Mar. 31)
For further details, see Access Reports, Apr. 7, 2004, p. 1
May 4, 2004
Supreme Court Recognizes Survivor Privacy Rights
Ruling in a case concerning disclosure of photographs taken at the Marcy Park site of Vince Foster's suicide, the Supreme Court has recognized a separate privacy right of family members in preventing disclosure of crime scene photos. Writing for a unanimous Court, Justice Anthony Kennedy noted that "we have observed that the statutory privacy right protected by Exemption 7(C) goes beyond the common law and the Constitution. . .It would be anomalous to hold in the instant case that the statute provides even less protection than does the common law." (National Archives and Records Administration v. Favish, No. 02-954, U.S. Supreme Court, Mar. 30)
For further information, see Access Reports, Mar. 24, p. 1.
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