Tag Archives: FOIA

“Expect Delays”: Judicial Watch v. Department of Homeland Security

by Bernard Bell — Tuesday, July 24, 2018

Delay has been an endemic problem for the Freedom of Information Act (“FOIA”) regime.  As a 2016 staff report of the House Committee on Government and Oversight Reform said: Agencies fail to articulate reasons for delays or explain how to navigate the process. Requesters wait months, not weeks, before receiving any response. Even a denial […]

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Plausible Deniability: Selective Disclosure of Information and FOIA

by Bernard Bell — Thursday, May 17, 2018

Unofficial leaking has been in the news recently, and is never far away from public consciousnesses.  But “[g]overnment officials and military officers, from the President on down, routinely authorize leaks for policy or political purposes.”  Jack Nelson, U.S. government Secrets and the Current Crackdown on Leaks 2 (2002), accessible at, https://shorensteincenter.org/wp-content/uploads/2012/03/2003_01_nelson.pdf?x78124. Suppose intelligence officials want […]

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Applying the “Deliberative Process Privilege” to Internal Agency Debates Regarding Communications Strategy

by Bernard Bell — Tuesday, Apr. 10, 2018

On December 14, 2017, the Federal Communications Commission voted to repeal its Obama-Era net neutrality rules.  The day before the vote, FCC Chair Ajit Pai appeared in a humorous and unconventional “Harlem Shake” video produced by the Daily Caller, a conservative website.  In the video, entitled “7 Things You Can Still Do After Net Neutrality,” […]

Rocky Mountain Wild v. U.S. Forest Service: Applying Forsham v. Harris in the NEPA Context, by Bernard W. Bell

by Guest Blogger — Sunday, Mar. 11, 2018

The Freedom of Information Act (“FOIA”) makes “agency records” available to the public upon request, but leaves the term “agency record” undefined. In Forsham v. Harris, 445 U.S. 169 (1980), the Supreme Court ruled that FOIA did not reach documents created and held by government contractors. Later, in U.S. Dep’t of Justice v. Tax Analysts, […]

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Villanova Law Review Symposium: FOIA at 50

by Chris Walker — Sunday, Oct. 15, 2017@chris_j_walker

Looks like a fascinating law review symposium by the Villanova Law Review (from the law school’s website): The Villanova Law Review examines fifty years of operation under the Freedom of Information Act (FOIA) with its annual Norman J. Shachoy Symposium on October 20, 2017. The symposium features a group of distinguished FOIA and transparency scholars, governmental officials, […]

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Immigration Administrative Processing: FOIA Response from Department of State, by Shoba Sivaprasad Wadhia

by Guest Blogger — Monday, July 10, 2017

In April 2014, the Center for Immigrants’ Rights Clinic (on behalf of Maggio & Kattar) filed a FOIA request seeking information about the Department of State’s Administrative Processing Program. This same year, we researched and prepared a “Frequently Asked Questions” document that is available here. Administrative processing, also known as Security Advisory Opinion (SAO), is […]

ACUS and Proactive Disclosure under the Freedom of Information Act, by Dan Sheffner

by Guest Blogger — Friday, June 9, 2017

While much scholarly and public attention is paid to the Freedom of Information Act’s (FOIA) request-driven model of disclosure, less well known is the statute’s requirement that agencies publicly disclose certain government records without waiting for a request from the public.  Federal agencies must “make available for public inspection in an electronic format” specific types […]

Prosecutorial Discretion at ICE: My Latest FOIA Adventure, by Shoba Sivaprasad Wadhia

by Guest Blogger — Friday, May 26, 2017

Prosecutorial discretion refers to the decision made by employees of the Department of Homeland Security (DHS) about whether and to what extent immigration laws should be exercised against a person or group of persons. When DHS chooses to not pursue arrest or detention of an undocumented mother living in the United States for many years […]

O’Connell on Kwoka on FOIA Commercialization (AdLaw Bridge Series)

by Chris Walker — Saturday, June 4, 2016@chris_j_walker

With several paper deadlines over the last two weeks (and next two weeks), the AdLaw Bridge Series has been a bit neglected.* But I wanted to quickly highlight a terrific article, which Jotwell has more fully reviewed. Last week over at Jotwell, Anne O’Connell reviewed FOIA, Inc. by Margaret Kwoka, which was published in the […]

No, Congress Didn’t Commit a Crime When It Shopped for Coverage

by Nicholas Bagley — Friday, Apr. 15, 2016

John Malcolm and Michael Cannon—yes, the Michael Cannon of King v. Burwell fame—have a new op-ed accusing members of Congress and/or their staffers of committing a federal crime. Documents obtained under the Freedom of Information Act show that unnamed officials who administer benefits for Congress made clearly false statements when they originally applied to have […]