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Protecting citizens' rights in the courts
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FOIA and Government SecrecyBonignore v. U.S. Dept of Health and Human ServicesPlaintiff is seeking records in connection with her petition to HHS-NIOSH (National Institute for Occupational Safety and Health) to have certain employees of the Linde Ceramics Facility in Tonawanda, New York, designated as a Special Exposure Cohort (“SEC”) for the dates of employment of November 1, 1947 through December 31, 1953. Once employees are designated an SEC, they are presumptively entitled to compensation under the Energy Employees Occupational Illness Compensation Program Act of 2000. NIOSH initially determined that plaintiff’s petition was not eligible for a full evaluation. Plaintiff appealed. The NIOSH Director appointed a three-person panel to review the initial determination. That panel issued a review summary of its findings, on which the Director based her final decision that plaintiff’s petition will not receive a full evaluation. Plaintiff seeks the panel’s review summary of its findings. After plaintiff's unsuccessful administrative attempts to obtain these records under the Freedom of Information Act, Public Citizen filed a complaint in the U.S. District Court for the District of Columbia on Wednesday, October 28, 2009.
Natural Resources Defense Council v. Federal Maritime CommissionThis case, brought as part of our Public Interest FOIA Clinic, primarily challenges the Federal Maritime Commission's decision to deny NRDC a fee waiver in conjunction with NRDC's FOIA request for documents about FMC's investigation of the clean trucks programs at two California ports. In denying NRDC's fee waiver request, FMC claimed that NRDC had a commercial interest in the documents because of its advocacy efforts in favor of the clean trucks programs, which included some coalitions with labor unions on the issue of an "employee mandate." That mandate, which would require truck drivers authorized to enter the ports to be employees of the trucking companies rather than independent contractors, was part of a broader goal to reduce the emissions from trucks at the ports. Although FMC could not identify any way that NRDC would benefit financially from the documents at issue, it claimed that the truck driver's potential for higher wages was a sort of vicarious commercial interest of NRDC's. To read more about FMC's clean trucks program investigation and the FOIA request at issue, read our blog entry on the lawsuit.
Lardner v. Department of Justice (2009)Public Citizen is representing George Lardner, who is writing a book on the presidential pardon power, and who requested documents from the Department of Justice's Office of the Pardon Attorney concerning a certain pardon applicant, Chibueze Okorie. DOJ has refused to release certain portions of the requested records, claiming privacy and deliberative process exemptions.
Change to Win v.Ferris State University
Gilman v. Department of Homeland Security (2009)Denise Gilman, a clinical law professor at the University of Texas and member of the UT Working Group on Human Rights and the Border Wall , submitted a Freedom of Information Act (FOIA) request in April, 2008 for records that would show where the fence would be built, including maps, surveys and appraisals of affected properties. She also requested information about the criteria for deciding where segments of the wall would be built and agency assessments of the impact of the wall on surrounding communities. Almost a year later, the U.S. Department of Homeland Security (DHS), the U.S. Customs and Border Protection (CBP) and the U.S. Army Corps of Engineers have not complied with Gilman's request. Despite initial indications that the agencies possessed volumes of records responsive to Gilman's request, the corps of engineers denied part of her request outright and released only a few documents with substantial redactions. DHS referred her entire request to CBP, which released a mere two redacted documents. In January 2009, CBP told Gilman that it was still processing her request despite a federal requirement that it respond to her April 2008 request within 20 days. In the lawsuit filed in U.S. District Court for the District of Columbia, Public Citizen asks the court to order the agencies to make the requested records available to Gilman. The suit also challenges the redactions taken in some key documents, including information about property ownership in affected areas. The agencies are now producing documents under a stipulated schedule, and any briefing on any withholdings will commence after the production is complete.
Rivera-Drew v. HHSWe represent an attorney/researcher focusing on corporate accountability who filed a FOIA request with the Department of Health and Human Services (HHS) seeking records filed by HCA, Inc. in compliance with reporting requirements under a Corporate Integrity Agreement. When more than a year had passed and HHS had produced only about 5% of the 72,000 pages of responsive records, we filed suit to compel the agency to comply with FOIA and produce the documents. On May 28, 2009, the defendant agreed to entry of a scheduling order to govern the production of the remaining documents.
Lardner v. Department of Justice (2008)Public Citizen represents George Lardner, who is writing a book about the presidential pardon power. The suit involves the denial of a Freedom of Information Act request to the Office of the Pardon Attorney at the Department of Justice, in which Mr. Lardner requested the names of applicants for pardon or commutation whose applicants were denied By President Bush. DOJ argues that the information is protected from disclosure under FOIA exemptions 6 and 7(C), which apply when the dislcosure would constitute an invasion of personal privacy. The suit is pending in the US District Court for the District of Columbia.
Brayton 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?
United Farm Workers and Farmworker Justice v. Department of LaborWe brought this case under the Freedom of Information Act (FOIA) to compel the Department of Labor (DOL) to release public records requested by the United Farm Workers (UFW) and Farmworker Justice (FJ). UFW and FJ had made a series of seven FOIA requests to DOL for documents related to employer applications for certification to hire temporary foreign agricultural workers through the H-2A guestworker program, but DOL failed to produce many of the requested records and had denied plaintiffs’ requests for fee waivers. In order to obtain time-sensitive documents pending resolution of the fee waiver issue, we filed a motion for leave to deposit funds to the Court’s registry. The motion was granted and DOL was ordered to produce the requested records. The parties then filed cross motions for summary judgment. Plaintiffs argued that they were entitled to a fee waiver and that DOL had failed to produce all of the requested records and had failed to justify its redactions to the documents that had been produced. Rather than oppose plaintiffs’ motion for summary judgment, DOL gave up and conceded that UFW and FJ had established their entitlement to a fee waiver, and conceded that it had produced documents with improper redactions and had failed to produce certain responsive documents. DOL then reprocessed its responses to correct the improper redactions and include previously omitted documents, and plaintiffs were granted leave to withdraw the funds they had deposited in the Court’s registry. On September 11, 2008, the Court entered an order approving the parties’ stipulation of settlement pursuant to which DOL paid plaintiffs $60,000 in attorneys’ fees.
Advocates for Highway and Auto Safety v. Federal Motor Carrier Safety AdministrationPublic Citizen represented 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. In a series of productions in 2008 and early 2009, the agency procedure records related to the program.
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 they were exempt from disclosure as predominantly internal records whose release would risk circumvention of the law and because they were covered by the deliberative process privilege. After the district court ruled in favor of OMB, Public Citizen appealed to the United States Court of Appeals for the District of Columbia, which concluded that the records were not predominantly internal and that the majority of them were also not predecisional and deliberative.
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. After the court’s decision, Public Citizen settled with the drug companies, receiving redacted versions of the records.
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.
Edmonds v. DOJPublic Citizen filed an amicus brief on behalf of 14 public interest and 9/11 family groups urging the U.S. Court of Appeals for the D.C. Circuit to reinstate the case of former FBI translator Sibel Edmonds, who was fired after reporting to superiors numerous instances of wrongdoing in her unit. Edmonds challenged her retaliatory dismissal by filing suit in federal court, but her case was dismissed when the government invoked the "state secrets privilege" — a common law evidentiary privilege that allows the government to withhold information on the grounds that it could compromise national security. Edmonds appealed the dismissal of her case. In the amicus brief, we argue that the government overreached in claiming that the entire case had to be dismissed and that the district court erred by failing to scrutinize the basis of the government's privilege claim to determine whether an accommodation was possible that would have permitted Edmonds to prove her case without compromising national security information. Further, we argue that the timing and breadth of the government's privilege claim suggests that it was used as a litigation tactic to deprive Edmonds of her day in court, rather than to protect legitimate secrets. The privilege was also used to stop Edmonds from testifying in a case brought by the families of those killed on Sept. 11, 2001, against Saudi individuals and others who allegedly financed al Qaeda. Much of the information that the government claims is secret was released to Congress and the public before the government asserted the state secrets privilege.
Project On Government Oversight (POGO) v. AshcroftThis case challenged the retroactive classification of information related to whistleblower Sibel Edmonds’ allegations of wrongdoing in an FBI translation unit. Public Citizen, representing the Project On Government Oversight (POGO), filed suit against then-Attorney General John Ashcroft and the U.S. Justice Department (DOJ) for retroactively classifying the information. The suit alleged that the retroactive classification was unlawful and violated POGO’s First Amendment right to free speech by imposing a prior restraint on POGO's ability to communicate important information to the public. The information at issue was presented by the FBI to the Senate Judiciary Committee during two unclassified briefings in 2002. The information was referenced in letters from U.S. Sens. Patrick Leahy (D-Vermont) and Charles Grassley (R-Iowa) to DOJ officials. The senators’ letters were posted on their Web sites but were removed after the FBI notified the Senate in May 2004 that the information had been retroactively classified. During a June 2004 Senate Judiciary Committee hearing, Ashcroft defended the decision to retroactively classify the information, claiming that its further dissemination could seriously impair the national security interests of the United States, even though for more than two years the information was widely available to the public. Throughout the litigation, POGO had offered to dismiss the suit if the DOJ stated that POGO could discuss and disseminate the letters without fear of prosecution, but the agency refused to do so and instead claimed that POGO lacked standing to maintain the suit because the threat of criminal sanctions did not injure POGO. On the eve of the hearing on the parties’ cross motions for summary judgment, the Justice Department reversed its position and admitted that the information it had retroactively classified could be released to the public.
Howell v. DOJPublic Citizen represents a prisoner seeking to obtain a copy of his pre-sentence investigation report (PSR) under FOIA. The government concedes that plaintiff’s PSR is subject to disclosure under FOIA, and the government has not invoked any FOIA exemption to justify its refusal to produce the document for copying. Instead, the government claims that it satisfies FOIA by allowing plaintiff to see his PSR from time to time under procedures that explicitly forbid plaintiff from "obtaining or possessing" a copy of his PSR. We contend that FOIA entitles requesters to obtain copies of responsive documents that are not exempt from disclosure.
Edmonds v. FBIIn this case, a FOIA requester obtained a court order requiring the FBI to expedite processing of her FOIA request. Thereafter, the FBI produced some records, and the parties had additional disputes over whether other documents were properly exempt. The court ruled in favor of the FBI on the exemption issues. The requester sought an award of attorney fees, arguing that she had prevailed when the court ruled in her favor on the part of her complaint that sought expedited processing. The court, however, held that prevailing on this issue was not enough to entitle a requester to fees. The requester appealed to the U.S. Court of Appeals for the D.C. Circuit, and Public Citizen has filed a brief in her support, arguing that one of the principal purposes of FOIA is to require that agencies provide access to records promptly, and that a requester who wins a court order requiring an agency to expedite processing of her FOIA request has therefore prevailed on the merits of a FOIA claim and should be entitled to attorney fees.
Lardner v. Department of JusticePublic Citizen represented a reporter, Geirge Lardner, who is writing a book about presidential pardons. Mr. Lardner made several requests to the Office of the Pardon Attorney at the Department of Justice, and the Office denied parts of his requests on the basis of the presidential communciations privilege, the deliberative process privilege, and privacy. Mr. Lardner brought suit in the US District Court for Washington, DC. During litigation, the Office stepped back from its original position and released more and more documents. Deciding cross-motions for summary judgment, the court ruled in favor of the Office on the privilege claims but in favor of Lardner on some of the privacy issues.
Public Citizen v. Peters, Secretary of the Department of Transportation
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