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FOIA and Government SecrecyBrayton v. Office of the United States Trade RepresentativePublic Citizen represents journalist Ed Brayton in this action under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to compel the Office of the United States Trade Representative (USTR) to produce a copy of the compensation settlement agreement between USTR (on behalf of the United States) and the European Union announced by USTR on December 17, 2007. That agreement was reached in response to the United States’s decision to invoke Article XXI of the General Agreement on Trade in Services to amend the U.S. schedule of commitments under the World Trade Organization (WTO) to exclude the U.S. gambling and betting sector. After a 2007 WTO ruling authorized trade sanctions because the United States had failed to conform U.S. gambling laws to WTO rules, the Bush administration announced it would remove the gambling sector from WTO coverage. But to do so, the U.S. was required under WTO rules to negotiate compensation for other WTO countries affected by the loss of revenue. Although it has announced that deals have been reached with the European Union and other countries, USTR has refused to release the details of the compensation agreements. Submitting new U.S. service sectors to the WTO’s authority would constrain U.S. federal, state and local government’s ability to regulate in these sectors and expose existing and future domestic policies in these sectors to challenge before WTO tribunals, as occurred with the U.S Internet gambling ban. In response to Brayton’s FOIA request, USTR contended that the settlement is classified and cannot be released as a matter of national security. Public Citizen contends in this FOIA lawsuit, filed in the U.S. District Court for the District of Columbia, that the settlement is not properly classified under the applicable Executive Order, and thus, that it is improper for USTR to withhold the document on that basis.
Davis v. U.S. Department of JusticePublic Citizen has filed an amicus brief on behalf of itself, the Electronic Frontier Foundation, Judicial Watch, and the National Security Archive, arguing that the Supreme Court should hear this case and allow people to get attorney's fees if they sue and successfully receive documents they have requested from the government under FOIA. The question presented is: Does the holding in Buckhannon Board & Home Care, Inc. v. West Virginia Department of Health & Human Resources, 534 U.S. 598 (2001), that the term "prevailing party" requires a judicially sanctioned change in the relationship of the parties in order to be eligible for an award of attorney's fees and costs in two civil rights statutes extend to the Freedom of Information Act, 5 U.S.C. Sec. 552(a)(4)(E), which provides that a plaintiff who "substantially prevails" is eligible for fees?
Advocates for Highway and Auto Safety v. Federal Motor Carrier Safety AdministrationPublic Citizen represents Advocates for Highway and Auto Safety, which filed a Freedom of Information Act (FOIA) request with FMCSA in October 2006 for information about activities to develop or implement a program to evaluate Mexico-domiciled motor carriers that would be permitted to operate beyond the Mexico-United States border zone. The agency never substantively responded to the request. In February 2007, the Bush administration announced a 12-month pilot project to allow Mexico-domiciled trucks to operate beyond the border zone.
Public Citizen, Inc. v. Office of Management and Budget (OMB)Public Citizen filed a complaint on February 28, 2007 against the Office of Management and Budget (OMB) over the agency's refusal to disclose lists of agencies that can submit legislative and budgetary materials directly to Congress without first submitting them to OMB for clearance. Under OMB Circulars A-11 and A-19, agencies must submit proposed legislation, reports, testimony, and budget-related materials to OMB for "coordination and clearance" before transmitting them to Congress. However, some agencies are required by statute to transmit their legislative or budgetary materials directly to Congress, and OMB allows some agencies to bypass the legislative or budgetary clearance processes even though no statutory authority requires it. OMB denied Public Citizen's Freedom of Information Act request for records listing the agencies that can directly submit legislative and budgetary material to Congress, claiming that release of the lists would "chill the deliberative process" and that the records related solely to internal agency processes. As Public Citizen had explained to OMB, however, the requested records are not deliberative in nature, and the public has an interest in understanding the relationships between the administrative agencies and Congress and in learning which agencies can submit legislative and/or budgetary materials directly to Congress without first running them by OMB. The case is in the United States District Court for the District of Columbia.
ACLU of Delaware v. TaylorThe ACLU of Delaware, represented by Public Citizen filed suit against the Delaware Department of Correction (DOC) over its refusal to provide information about how it treats prisoners for illnesses such as HIV, hepatitis and high blood pressure. The lawsuit, filed in the Superior Court of Delaware for New Castle County maintains that the withholding of documents relating to the correctional facility's treatment protocols for certain illnesses and operating procedures for wellness visits is in direct violation of the Delaware Freedom of Information Act (FOIA). On behalf of the ACLU of Delaware, attorney Julia Graff requested informatiion relating to certain prison policies. Although Graff was granted access to some of the information, Stanley Taylor, Delaware's Commissioner of Correction, refused her request for treatment protocols for HIV/AIDS, hepatitis, diabetes, heart disease, cancer, sexually transmitted diseases, pregnancy and gynecological care, high blood pressure, high cholesterol, dental care and chronic pain, as well as operating procedures for routine wellness visits, calling them “trade secrets” and “privileged or confidential” property of the prison's contractor, Correctional Medical Services, Inc. Although the Delaware DOC has refused to release the information, corrections departments in other states have provided similar prison health care policy information to the public.
Sidney Wolfe v. FDAPublic Citizen filed a complaint and a motion for a temporary restraining order to prevent the Food and Drug Administration from closing a July 14, 2006 meeting of its Blood Products Advisory Committee. The Federal Advisory Committee Act requires advisory committee meetings to be open to the public except in the case of a few narrow exceptions. If the President or head of the agency determines one of those exceptions applies to a portion of the meeting, he must state in writing the reasons for that determination. In announcing that the July 14 meeting would be closed, the FDA did not even report the topic of the meeting, let alone give specific reasons for its closure. The agency just stated that the meeting would be closed to permit discussion of trade secrets and/or confidential commercial information. Subsequent to the announcement of the meeting, Sidney Wolfe, director of Public Citizen Health Research Group, learned that the topic of the meeting was the Navy’s proposal to test a blood substitute called Hemopure on civilian trauma patients. Biopure Corp., the manufacturer of Hemopure, has told Dr. Wolfe that little, if any, of the presentations and discussions at the July 14 meeting are likely to disclose information it considers a trade secret or confidential commercial information. In response to the lawsuit, the meeting was cancelled on July 13.
Long v. IRS (II)Public Citizen Litigation Group is representing researcher Susan Long in ongoing efforts to enforce a court order requiring the IRS to make statistical data available to her upon request. The order was issued in 1976 by the U.S. District Court for the Western District of Washington. After many years of providing data to Ms. Long upon request, the IRS in 2004 began refusing to make its statistical information available to Ms. Long. In 2006, Ms. Long filed a motion asking the court to enforce the 1976 order by requiring the IRS to make certain statistical tables available to her. The court granted the motion and awarded Ms. Long attorneys’ fees. The IRS filed an appeal, but later withdrew it. While the appeal was pending, the IRS asked for a stay of the district court’s order, which the district court denied. Thereafter, the IRS continued to violate the district court’s orders by delaying production of data, providing incomplete data, improperly redacting the data, and refusing to make data available electronically. The IRS also refused to comply with the court’s specific instruction that if it wished to redact data, it seek the court’s permission before doing so. In February 2008, Ms. Long filed a new motion to enforce the court’s orders and to require the IRS to provide complete, unredacted, electronic copies of data subject to the court’s orders. Finding that the IRS had violated its orders, the court granted Ms. Long’s motion on June 13, 2008.
Students for Sensible Drug Policy v. U.S. Department of EducationIn this case, Students for Sensible Drug Policy (SSDP), a youth-oriented non-profit that provides education on the harms caused by the war on drugs, requested from the Department of Education a state-by-state breakdown of the number of students who answered yes to the question on prior drug convictions on the federal student aid application. SSDP also requested a waiver of the fees associated with the request. The Department of Education denied the request for a fee waiver, asserting that the requested information would not contribute significantly to public understanding of the issue and claiming that, even though SSDP is a non-profit organization, it could not find that SSDP had no commercial interest in the information because "SSDP's campaign could directly benefit those who would profit from the deregulation or legalization of drugs." Public Citizen filed suit on SSDP's behalf in the U.S. District Court for the District of Columbia, arguing that SSDP was entitled to the fee waiver. In March 2006, the Department of Education has agreed to waive a hefty fee and turn over the data requested by SSDP.
Interfaith Worker Justice v. U.S. Department of LaborThis case challenged the Department of Labor's refusal to release the names of workers owed back wages under federal back wage settlements whom the Department was been unable to locate. Public Citizen represented Interfaith Worker Justice, a Chicago-based workers' rights organization, which requested the names of such workers in order to be able to help connect the workers to the back wages they were owed. Although releasing the names could benefit the workers, the Department of Labor initially denied the request, contending that releasing the names would be an unwarranted invasion of the workers' privacy. After Public Citizen filed the lawsuit, however, the Department agreed to release the names.
Sharkey v. FDA and MerckThis is a FOIA case challenging the FDA’s refusal to produce documents reflecting the net number of doses in each lot of hepatitis B vaccine distributed in the United States. Release of this information would aid research on vaccine safety and provide greater understanding of vaccine adverse reaction data. FDA has invoked FOIA Exemption 4 as its basis for withholding the requested documents, claiming that the records contain confidential commercial information the release of which could cause competitive harm to the two vaccine manufacturers.
Long v. OPMThis lawsuit, brought by the co-directors of the Transactional Records Access Clearinghouse (TRAC) against the Office of Personnel Management (OPM), charges that the agency violated the Freedom of Information Act (FOIA) by failing to provide requested information from its Central Personnel Data File, a database of information on the federal civilian workforce. In particular, the agency withheld all files related to Department of Defense civilian employees and the names and work-stations of hundreds of thousands of additional employees. In total, it withheld information on more than 900,000 employees, over 40% of the federal civilian workforce, and it did not explain the grounds upon which it is withholding the information. In addition, OPM has failed to release information about the review that it said led to its decision to reverse the longstanding policy of releasing this personnel information. Names of government employees and information about their worksites are frequently used by reporters and government watchdog groups to ferret out fraud, waste and other problems. The suit was filed in the U.S. District Court for the Northern District of New York.
Public Citizen v. SorrellUnder Vermont law, drug companies have to report the value and nature of gifts they give doctors and hospitals to the Vermont Attorney General. Public Citizen requested this information from the state Attorney General, who released some of the records, but withheld all records that had been stamped "trade secret" by the drug companies. Public Citizen filed suit under the Vermont Public Records Act, arguing that the withheld records did not meet the definition of a trade secret in the Public Records Act and therefore had to be disclosed. The Attorney General's office filed a motion to dismiss the case, claiming that the Public Records Act did not apply at all to the requested records because they had been submitted under a different law. On February 9, 2006, the court denied the Attorney General's motion, finding that the Public Records Act applies to the requested records and that the Attorney General can only withhold the requested records for being trade secrets if they meet the trade secret definition in the Public Records Act.
Long v. IRSPublic Citizen has filed suit on behalf of researchers Susan Long and David Burnham, co-directors of the Transactional Records Access Clearinghouse, seeking access to information about the databases the IRS uses to track its enforcement and auditing efforts. The IRS denied requests for basic materials about its information systems on the ground that the records had been designated to be for "internal use" or "official use only," even though those are not valid bases for withholding materials under FOIA. The IRS also claimed that some of the materials sought related to "homeland security" even though they are not classified and do not fall within any statutory categories of national security information that is exempt from release under FOIA. Finally, the IRS claimed that it was not even denying the FOIA requests, even though it was refusing to release the materials. The lawsuit not only seeks release of the particular documents requested, but also challenges the IRS's purported "policy" of not releasing "internal use" and "official use only" documents irrespective of FOIA's requirements. The suit also seeks a declaration that IRS officials acted arbitrarily and capriciously in denying the FOIA requests, which, if issued by the court, will lead to an investigation by the Office of Special Counsel as to whether the responsible officials should be subject to discipline.
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