Immigration judges are career civil-service employees in the Department of Justice’s executive office. The judges preside over matters such as deportation, exclusion, removal and rescission proceedings for non-citizens charged with immigration law violations. The American Immigration Lawyers Association submitted a request under the federal Freedom of Information Act (FOIA) for records about complaints filed against immigration judges. The Department of Justice disclosed thousands of pages of records, but redacted (1) information that disclosed the identity of individual judges, and (2) information that was determined to be non-responsive to the specific request regarding judicial conduct. The U.S. Court of Appeals for the District of Columbia found that the Department of Justice erred with respect to both categories of redactions. American Immigration Lawyers Association v. Executive Office for Immigration Review, 830 F.3d 667 (D.C. Cir. 2016). The Court concluded that the government’s across-the-board approach to redacting immigration judges’ names was improper and remanded the case for rehearing with a more particularized inquiry into the propriety of redacting individual judge’s names. With respect to redactions based on non-responsiveness, the Court found no basis in FOIA for such redactions. The government was without authority to redact information within the records on the basis of non-responsiveness when no statutory exemption shielded the information from disclosure.
The federal Freedom of Information Act (“FOIA”) contains nine exemptions. Under the exemptions, the government can withhold information that might otherwise be available for disclosure. See 5 U.S.C. § 552(b)(1)-(9). FOIA “Exemption 4” applies to “trade secrets and commercial or financial information obtained from a person and privileged and confidential.” In a recent decision, the 9th Circuit Court of Appeals applied Exemption 4 to Notices of Seizure issued by the United States Bureau of Customs and Border Protection (“CBP”) to an importer of merchandise potentially infringing on a U.S. trademark.. CBP had heavily redacted the Notices of Seizure in responding to a FOIA request.
For application of Exemption 4, the 9th Circuit requires a government agency to demonstrate the information to be withheld is “(1) commercial and financial information, (2) obtained from a person or by the government, (3) that is privileged or confidential.” (Watkins v. U.S. Bureau of Customs and Border Protection, No. 09-35996, 5/6/11). The Court found that the Notices contained “plainly commercial information, which discloses intimate aspects of an importers business such as supply chains and fluctuations of demand for merchandise.”
In a decision issued on May 16, 2011, the United States Supreme Court examined the meaning of the term “report” under the Freedom of Information Act (“FOIA”). (Schindler Elevator Corp. v. United States ex rel. Kirk, No. 10-188, 2011).
The case arose when Daniel Kirk, a Vietnam veteran, sued his former employer, Schindler Elevator, under the federal False Claims Act. He asserted that Schindler, a government contractor, had submitted false claims by failing to file Vietnam Veterans Act reporting forms that were required under Schindler’s government contract. Kirk had confirmed the lack of Vietnam Veterans Act reporting through a FOIA request.
The False Claims Act, however, has a “public disclosure bar.” 31 U.S.C. § 3730(e)(4)(A). That bar precludes a whistleblower suit based on information (including reports) obtained through a FOIA request. The Supreme Court reversed the Second Circuit Court of Appeals and rejected an argument that the word “report” should receive a narrower meaning than simply “something that gives information.” The Supreme Court looked to the ordinary meaning of the word “report.” Citing dictionary definitions, the Supreme Court defined the term to include “something that gives information,” a “notification,” and “[a]n official or formal statement of facts or proceedings.” As a result, the disclosure of public records in response to a FOIA request constitutes a “report” and a False Claims Act case cannot be maintained based upon such a disclosure.
Has the Obama Administration effected real change in FOIA responsiveness? A recent Associated Press article, claims that the federal Freedom of Information Act is unwieldy and difficult, and that only the most patient and persistent requesters actually obtain the sought-for information. The article is critical of agencies’ efforts in implementing President Obama’s promise to make government more open and release more information rapidly.
During an event sponsored for Sunshine Week, March 13-19, reported in the AP article, Associate Attorney General Tom Perrelli is quoted as stating that more records are going out unredacted than ever before. “Where we once might have looked at a document, noticed a piece that could be released, and redacted the rest, we’re now more often determining that we can release the whole thing,” Perrelli is quoted as saying. However, a witness before the Senate Judiciary Committee, Thomas Fitton of Judicial Watch, stated that the conservative watchdog group has “filed 44 lawsuits to force the Obama administration to comply with the law.”
The New York Times has been reporting on how open public records laws are being enlisted in the fight against governmental corruption – not here in the United States – but on the other side of the world, in rural India. In 2005, India joined a growing list of developing countries to enact a national open public records law, known as the Right to Information Act (“RIA”). The legislation’s preamble asserted that “democracy requires an informed citizenry and transparent information” and identified curbing governmental corruption as a central goal of the RIA. The RIA requires governmental agencies to respond to citizen requests for information within 30 days of receiving a request. Similar to Washington’s Public Records Act, 42.56 R.C.W., and the federal Freedom of Information Act, 5 U.S.C. § 551-559, governmental agencies that fail to comply with information requests are subject to daily penalties.
Here is another article from Florida on whether governments should use web 2.0 sites:
“Attorneys, legislators to pull plug on Marco government’s use of social Web sites? Increased accessibility to candidates and officials, public records concerns among the pros and cons being considered in use of Facebook, Twitter”
Spies should also stay off Facebook: “British spy chief outed on wife’s Facebook page”
Here is an editorial on the "torture memos" from the Olympian written by the editor of this blog, Ramsey Ramerman. It was inspired by George Will’s recent statement on ABC’s This Week: "The problem with transparency is that it’s transparent for the terrorists as well.”
Update 5/13: Here’s the Og-Blog’s take on the editorial. As it correctly notes, President Obama’s administration has not been as transparent as many had hoped, particularly with regards to the Federal Reserve and the AIG bailout.