Posts Tagged ‘Department of Justice’


Judging the Freedom of Information Act in environmental court

One misstep, one decision, one instant can unleash consequences that last a lifetime. Consider April 20, 2010, when the Deepwater Horizon oil rig explosion created an environmental catastrophe in the Gulf of Mexico, the fallout from which is still making news. While the first reports were made from the coast, the story has now moved into the courtroom.

Headlines scream breaking environmental news when an oil tanker or truck has a major spill, when a factory is found to be releasing toxic chemicals, or when a wildlife trafficker is caught and arrested (remember the man who tried to smuggle parrots in water bottles?) But what happens after the fact is sometimes overlooked. The court cases, the cash settlements, and the criminal punishments are as interesting as the original stories, and the Environment and Natural Resources Division (ENRD) of the Department of Justice makes reporting on them possible.

ENRD handles cases dealing with civil and criminal statutes related to the Clean Air Act, Clean Water Act, Superfund, and other lesser known environmental laws. It also handles conflicts over Native American rights and eminent domain actions to obtain private land for federal ownership. The Division is split into several categories, including Prevention and Cleanup of Pollution, Environmental Challenges to Federal Programs and Activities, Stewardship of Public Lands and Natural Resources, Property Acquisition for Federal Needs, Wildlife Protection, Indian Rights and Claims, and Appellate and Policy Work. The department is split into ten geographic sections nationwide, and is currently managing 7,000 active cases in state and territorial courts.

court-quote

I personally love looking into court proceedings and digging into legal issues. But there are a few reasons why it’s not attractive to everyone. For one, it takes an incredible amount of patience. The processing time between an original formal complaint and the final decision (then appeals, sentencing or settlement, etc) is months at best, never-ending at worst. During an ongoing case, lawyers, judges, and witnesses fall silent. And the best cases involving big-name companies will likely be settled in private behind closed doors, where confidentiality agreements and sealed documents are no match for FOIA. Of the nine FOIA exemptions, at least five can be used to block a  request for information that might come out during a court proceeding: including company trade secrets, witness medical records, law enforcement information, and internal agency personnel rules and practices. Finally, few people enjoy reading through the hundreds of pages of legal jargon that may accompany a case file.

One way to skirt this is to visit ENRD’s online press room, where releases include name of offender, prosecuting agency, details of the crime, and final decision and sentencing. In the last month, ENRD has published the outcomes of BP civil claim settlements, as well as environmental crimes committed by a Norwegian shipping company and an order to reduce emissions at a New Mexico power plant.

However, the press releases alone don’t give journalists a chance to dig deeper. It’s better to get your hands on court documents and sometimes, this can even be done without using FOIA. The Department of Justice puts out documents called “proactive disclosures” under subsection (a) 2 of FOIA, which are posted online automatically without any request from the public, and listed in the FOIA library. This includes final opinions, agency policy statements, FOIA request records, and certain administration staff manuals. Proposed consent decrees awaiting public comment are also available through the site and notices published in the Federal Register. Eleven cases are currently open for public comment, including U.S. v. District of Columbia Water and Sewer Authority and U.S. v. Alabama Power Co. Frequently requested records, final opinions and orders, and yearly summaries of litigation accomplishments dating back from 2004, can be found on the Selected Publications site (although no opinions are currently listed).  However, that’s not to say all information is readily available.

FOIA @ ENRD

If you do need to file a FOIA request with ENRD, what can you expect? The Justice department handles upward of 60,000 requests per year, but only 70 to 80 of those fall under the Environmental and Natural Resources category. The small number of requests means processing time is slightly quicker than the average for DOJ requests; about 30 days for simple requests, a year for complex, and 10 days for expedited requests. Only 6 ENRD requests were pending at the end of 2014, despite the division having only two full-time FOIA employees.

court-foia

ENRD has traditionally granted 30% of FOIA requests in full, and given partial grants in another 30%; consistent with the DOJ response overall. Only a small portion (generally less than 5 cases) are denied based on exemptions, while most are denied listing the reason as “no records.” Denials made last year were based on exemption 3, citing 5 U.S.C. § 574 and 28 U.S.C. § 651, and withholding information about dispute resolution communications and confidential mediation documents.

To file an ENRD open records request, contact Sarah Lu, FOIARouting.enrd@usdoj.gov.

Decreasing Wildlife Trafficking, Increasing Web Traffic

In the past few years, a joint DOJ task force has been focusing on wildlife trafficking cases, and publishing summaries of the cases in a new online database. I find this particularly interesting, not only because some of these stories can involve off-beat characters (i.e. water-bottle bird man), but because illegal ivory/rhino horn/shark fin trading are big problems in developing countries. And it’s not easy to get a look into the black market. More info about each case can be found in the FOIA library or by a records request, including a case caption or name, civil action number, judicial district, and date or year of filing.

WILDLIFE TRAFFICKING PROSECUTIONS
BLACK MARKET TRADE IN RHINOCEROS HORN ILLEGALLY IMPORTED PROTECTED BLACK CORAL
ILLEGAL IMPORTATION OF SOUTH AFRICAN LEOPARD HIDES AND SKULLS AFRICAN ELEPHANT IVORY SMUGGLING
ILLEGAL IMPORTATION OF ENDANGERED SPECIES NARWWHAL TUSKS AND TEETH
SAFEGUARDING PROTECTED SPECIES

Final note: In addition to the DOJ, there are several other sites that keep searchable court records, although access might require a paid subscription. A few of the most frequently used sites are:.

  • Public Access to Electronic Court Records (PACER) 
    • PACER is a national database for federal cases from U.S. district, appellate, and bankruptcy courts. You can search by party involved, by court locale, or with the case locator tool. Documents are available immediately after being electronically filed. PACER requires its members to register for an account, and may charge up to $3.00 for a document. The downsides are that some personal identification information, like name and address, are removed before the record becomes public, and that there are no pre-2004 criminal case documents.
  • Lexis Nexis
    • Lexis Nexis is another pay-to-use service, but searches also include documents such as newspaper articles and company information related to a specific query. There is a professionals option, which contains documents, dockets, and litigation histories, but users must have a subscription to access. On the other hand, there is Lexis Nexis Academic, which is free, and can search cases by specific citation or parties involved. I’ve usually found this strategy to be hit-or-miss when it comes to how much information is provided, but on the plus side, it’s free.
  • Free Law Online
    • This is an incredibly comprehensive and helpful site put out by the Gallagher Law Library at the University of Washington. It contains a list of databases including laws, bills, court opinions on the federal and state levels (not just Washington state); there are links for each provided by the National Center for State Courts and American Libraries Association. The site also gives suggestions for online law reporters and digests, and publishes a legal research guide for non-lawyers.

How would you judge your Department of Justice or court stories experience? Share your thoughts by contacting amayrianne@gmail.com or tweeting @amayrianne.

Must read FOI stories – 6/6/14

Every week I’ll be doing a round up of the freedom of information stories around the Web. If you have an FOI story you want to share, send me an email or tweet me.

  • How can you get open records from private colleges? Find federal agencies they report to and request records: Internal Harvard report, obtained via FOIA request, shines light on ex-researcher’s misconduct.
  • Electronic Frontier Foundation dukes it out with the Justice Department in court hearings. EFF sued the Justice Department for access to records showing opinions of the Foreign Intelligence Surveillance Court, which found some of the NSA’s domestic telephone surveillance unconstitutional.
  • Michigan House of Representatives passes bill affirming the confidentiality of gun records and keeps them exempt from FOIA. The bill codifies a 1999 Michigan Supreme Court Decision that gun records disclosure was “a clearly unwarranted invasion of an individual’s privacy.”
  • Investigative Reporters & Editors have an awesome FOI podcast, aptly named FOIA Frustrations​. You should listen to it.

David Schick is the summer 2014 Pulliam/Kilgore Freedom of Information intern for SPJ,  reporting and researching public records and FOI issues. Contact him at dschick@spj.org or interact on Twitter: @davidcschick

FOI Update: DOJ hasn’t questioned a FOIA exemption in four years, didn’t respond for four months

Four seems to be the magic number for the Department of Justice.

The department told congressional investigators on June 10 it hasn’t questioned an agency’s decision to withhold information under a Freedom of Information Act (FOIA) exemption for four years, and when confronted about its own outdated FOIA regulations, it didn’t respond for four months, according to the Washington Free Beacon.

A National Security Archive government-wide audit in December revealed that 56 federal agencies failed to update their FOIA regulations after Attorney General Eric Holder issued a memorandum requesting an update in 2009.

Oversight Chairman Darrell Issa (R-Calif.) and Rep. Elijah Cummings (D-Md.) even noted the DOJ’s own regulations have not been updated since 2003.

But when Issa and Cummings called this to the DOJ’s attention in a February letter, the DOJ did not respond until June.

Principal deputy assistant attorney general Peter Kadzik wrote a letter to the House Committee on Oversight and Government Reform on June 10, saying the DOJ has not determined any FOIA exemptions improper since the Obama administration’s first year in office.

But the Free Beacon notes that Kadzik’s letter did not acknowledge Issa and Cumming’s findings that in 2011 alone, the DOJ fully denied 30,000 FOIA requests and partially denied another 171,000 requests. It also used exemption 5 to deny more FOIA requests even though the Justice Department itself notes that this exemption is riddled with “somewhat opaque language.”

An August 2012 Washington Post analysis showed the number of FOIA requests fully denied due to exemptions rose more than 10 percent last year, from 22,834 to 25,636. But free information isn’t the only thing at stake when the government issues exemptions, tax payers dollars are often dished out to cover costly legal fees when news organizations and other information requesters file FOIA lawsuits against the federal government.

The Free Beacon reports that the number of FOIA lawsuits has “increased dramatically under the Obama administration,” even compared to his tight-lipped predecessor.

The Transactional Records Access Clearinghouse (TRAC) compared the last two years of President George W. Bush’s second term to the last two years of President Obama’s first term and found that FOIA lawsuits increased by 28 percent. The DOJ alone faced 50 percent more FOIA lawsuits, according to TRAC reports.

But in his letter to Issa and Cummings, Kadzik defended federal agencies, saying they have taken  “concrete steps to improve their FOIA administration.” The Free Beacon notes that the DOJ plans to publish its new FOIA guidelines later this year.

Kara Hackett is SPJ’s Pulliam/Kilgore Freedom of Information intern, a freelance writer and a free press enthusiast. Contact her at khackett@spj.org or on Twitter: @KaraHackett. – See more at blogs.spjnetwork.org/foi

Attorney attempts to restrict reporting during public meeting

A Department of Justice attorney tried to stop a Daily Iberian reporter from recording a public meeting or quoting her.

Jeff Zeringue, managing editor of The Daily Iberian, filed a complaint with the Department of Justice on June 15, in response.

As of 2 p.m. EST on Thursday, Zeringue had not heard back.

Louisiana’s Rep. Jeff Landry and Sen. David Vitter joined Zeringue’s battle by sending letters to Thomas E. Perez, assistant attorney general for the Justice Department’s Civil Rights Division.

“I came to Washington to fight for an open, accountable, and transparent government,” Landry wrote, reported the Associated Press.  “I find it wholly unacceptable that our government, specifically the DOJ, has not responded to Mr. Zeringue’s complaint.”

However, Justice Department spokeswoman Nanda Chitre, said the attorney never tried to prevent publication of or change the news story.

Upon entering the meeting in New Iberia on June 12,  Department of Justice attorney Rachel Hranitzky asked if any reporters were present, according to The Daily Iberian. Iberian reporter Matthew Beaton identified himself.

Hranitzky, a senior trial attorney in the department’s Civil Rights Division, said – according to policy—the reporter could remain in the meeting and quote other people who spoke, but could not tape the meeting or quote her.

The events of June 12 appear to be a violation of the reporter’s civil rights, as well as a violation of the public trust. Left unchallenged could give the department the feeling of reigning over it citizens, not defending them.”

— Jeff Zeringue, managing editor, The Daily Iberian

Beaton protested.  Because it was a public meeting he should be allowed to quote anyone speaking,  he said.  Eventually Hranitzky threatened to throw the reporter out of the meeting.

She warned Beaton about getting on the department’s “bad side,” Beaton reported.

After Beaton and others in the meeting protested, Hranitzky relented and allowed Beaton to stay in the meeting.

The Daily Iberian filed a complaint with Thomas E. Perez, the U.S. Assistant Attorney General over the department’s Civil Rights Division ,  on June 15, according to Zeringue.

“The events of June 12 appear to be a violation of the reporter’s civil rights, as well as a violation of the public trust. Left unchallenged could give the department the feeling of reigning over it citizens, not defending them,”Zeringue said in his editorial.

The Reporter’s Committee for Freedom of the Press also sent a letter to Perez.

“We are gravely concerned over any internal practice or policy preventing journalists from recording or quoting statements made by DOJ officials in public meetings,” said Lucy Dalglish, executive director of Reporter’s Committee For Freedom of the Press, according to The Daily Iberian.

Editor’s Note – The Associated Press story cited above was published by The Huffington Post on July 12.

Whitney is the summer Pulliam/Killgore intern with SPJ. She recently graduated from Brigham Young University after studying journalism. Connect with her via email –  wevans@hq.spj.org –  or on twitter – @whitevs7

*Know something about Freedom of Information that you think we should cover in a blog post? We want to hear from you! Send information to wevans@HQ.SPJ.org. It may be featured in a future post.

FOI wins in Detroit, Justice Department; potential fail in Tennessee

Win: After proposing a controversial rule change that would allow government agencies to deny the existence of national security documents, last Thursday the Department of Justice withdrew its proposal.

Potential Fail: The Tennessee County Commissioners Association is pushing county governments across the state to adopt a law that would allow elected officials to meet in private, as long as the group does not meet quorum. Bob Barnwell, president of the Association and Williamson County Commissioner, has toured the state urging local governments to adopt the law. He claims the Sunshine Law, which requires government meetings of more than two officials to be announced and open to the public, is overly burdensome. The current Sunshine Law applies to county commissioners but not to the state General Assembly, according to The Tennessean.

Win: Detroit citizens achieved a victory in open government Nov. 8 by approving a new city charter. Loopholes have been closed and the representative structure has been reworked, including new citizen advisory councils and anti-corruption measures. Read about the changes from Michigan Radio.

-Abby Henkel

Abby Henkel is SPJ’s communications coordinator and a 2011 graduate of Indiana University’s School of Public and Environmental Affairs master’s program. Reach her at ahenkel@spj.org.

FOI Tip of the Week: FOIA fee cheat sheet

This is the first of our weekly tips for all things FOI. These posts can help reporters and other citizens in their quest for information, whether they are pursuing records at the local, state or federal level.

FOIA fees can be tricky, especially when dealing with the federal government. It’s not just those searching for records who get confused, but also the officials expected to fill their requests.

The U.S. Department of Justice Office of Information Policy (OIP) held a summit May 17 to clear up some of the biggest fee-related issues for federal employees.

While there are plenty of twists and turns that citizens may encounter when requesting access to public records, fees are one of the most important concerns because they can be taxing on requesters’ wallets as well as their patience.

The Office of Government Information Services provides a simple but handy chart that explains key differences between fee and requester categories for FOIA.

It should be of help in assessing the basic fee requirements you may face when requesting records from the federal government.

– Morgan Watkins

Morgan Watkins is SPJ’s summer Pulliam/Kilgore Freedom of Information intern and a University of Florida student. Reach her by email (mwatkins@spj.org) or connect with her on Twitter (@morganwatkins26).

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