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Sep 19 14

PACER documents to be restored, court says

by Greg Munno

A spokesperson for the Administrative Office of the U.S. Courts (AOUSC) told the FOIA Project today that “full electronic access” to more than 800,000 cases removed from PACER will be restored. PACER is the electronic court document management and retrieval system relied on by thousands of researchers, lawyers, journalists and others.

The news was first announced in an article this afternoon by Andrea Peterson, who has been covering the issue for The Washington Post, and later confirmed by FOIA Project and other groups.

However, there is still confusion about what exactly was removed from PACER and what exactly will be restored. The documents were removed without warning in August because, according to the AOUSC, they were in a format that prevented the records from migrating to a new PACER  that is being developed.  The  cases removed were closed cases from four appellate circuits and the bankruptcy court for the Central District of California and comprise a fraction of the 33 million cases in the system.

Although AOUSC officials were able to peg the number of affected cases at around 800,000, they were not able to say exactly how many documents or pages those cases encompassed. You can read more about what was removed and the consequences for researchers, lawyers and journalists in our Sept. 5 report.

In an interview with AOUSC staff today, a spokesperson said that only the dockets from the removed cases will be available electronically. But she also said that all of  the documents that were removed would be restored. Asked about the apparent contradiction, she said that it was her understanding that the dockets were the only electronically available information on the cases available before the removal because the cases were old and closed. However, at least some of the cases would have been fairly recent. For example, the U.S. Court Appeals for the Federal District had all of its cases removed prior to March 1, 2012.

The spokesperson said the dockets for the appellate courts would be back online by the end of October, and that the bankruptcy court dockets would be restored after work on the appellate cases is complete.

The FOIA Project will continue to follow this story and share additional information as it becomes available.

Sep 18 14

FOIA Activity: 7 New Procedural or Substantive Decisions

by foiaproj

We have added 7 decisions of a procedural or substantive nature filed between September 7, 2014 and September 13, 2014. These are associated with 7 FOIA cases pending in federal district court. Note that because there can be delays between the date a decision is made and when it shows up on PACER, this listing includes only decisions that appeared on PACER during this period.

Click on the date to view the full text of the decision. Click on a case title below to view other details for that case, including links to the docket report and complaint.

  1. CAE 2:2013cv02204Laborers International Union of North America Pacific Soutohwest Region v. U.S. Department of Energy
    • September 9, 2014: STIPULATION AND ORDER signed by Chief Judge Morrison C. England, Jr. on 9/4/2014 ORDERING [21] Plaintiff's opposition to Defendant's motion for summary judgment [19] shall be filed by 10/3/2014; Defendant's reply to Plaintiff's opposition shall be filed by 10/31/2014; Hearing before Judge England shall be held on 11/13/2014 at 2:00 p.m. (Reader, L)
  2. CAN 4:2009cv03351Electronic Frontier Foundation v. Office of the Director of National Intelligence
    • September 11, 2014: ORDER by Judge Saundra Brown Armstrong GRANTING [97] Stipulation of Dismissal in its entirety. Parties to bear fees and costs. Signed by Judge Saundra Brown Armstrong, on 09/11/14. (ndr, COURT STAFF) (Filed on 9/11/2014) Modified on 9/12/2014 (jlmS, COURT STAFF).
  3. CAN 4:2013cv01593Asian Law Caucus v. United States Immigration and Customs Enforcement et al
    • September 11, 2014: ORDER by Judge Saundra Brown Armstrong Granting [37] Stipulation TO CONTINUE CASE MANAGEMENT CONFERENCE. (ndr, COURT STAFF) (Filed on 9/11/2014)
  4. CO 1:2013cv01722Brown et al v. Perez
    • September 9, 2014: COURTROOM MINUTES for proceedings held before Judge Raymond P. Moore: Motion Hearing held on 9/9/2014, taking under advisement [41] Plaintiffs' Motion for Summary Judgment and [52] Defendants' Motion for Summary Judgment. Bench Trial set for 10/1/2014 and 10/2/2014 is vacated. Court Reporter: Tammy Hoffschildt. (cpear)
  5. CO 1:2014cv02496Rocky Mountain Wild, Inc v. U.S. Forest Service et al
    • September 11, 2014: ORDER Setting Scheduling Conference for 12/10/2014 09:45 AM in Courtroom C201 before Magistrate Judge Kathleen M. Tafoya, by Magistrate Judge Kathleen M. Tafoya on 9/11/14. (sgrim)
  6. DC 1:2013cv01461MEZERHANE DE SCHNAPP v. UNITED STATES CITIZENSHIP AND IMMIGRATION SERVICES
    • September 9, 2014: MEMORANDUM OPINION. Signed by Judge John D. Bates on 9/9/14. (lcjdb1)
  7. DC 1:2013cv01554ROSENBERG v. DEPARTMENT OF DEFENSE
    • September 11, 2014: MEMORANDUM OPINION regarding the defendant's [12] Motion for Summary Judgment. Signed by Judge Beryl A. Howell on September 11, 2014. (lcbah1)
Sep 18 14

76 new FOIA court documents, plus case descriptions

by foiaproj

We have added 74 documents from 13 FOIA cases filed between September 7, 2014 and September 13, 2014. Note that there can be delays between the date a case is filed and when it shows up on PACER. If there are filings from this period that have yet to be posted on PACER, this FOIA Project list may not be complete.

Click on a case title below to view details for that case, including links to the associated docket and complaint documents.

  1. Buckovetz v. U.S. Department of the Navy (filed Sep 8, 2014)
    Dennis Buckovetz submitted a FOIA request to the Department of the Navy for records of an investigation that had formed the basis for three personnel disciplinary actions taken in 2013. The agency denied his request citing Exemption 7(A) (ongoing investigation or proceeding). He appealed the denial and was subsequently told that since the investigation was now closed, the records could be disclosed with redactions under Exemption 6 (invasion of privacy) and Exemption 7(C) (invasion of privacy concerning law enforcement records). Buckovetz once again appealed but was told his only remedy was to go to court. He then submitted requests for records related to the denial of his earlier request. The Navy indicated those requests were not considered proper at that time and his only remedy was to go to court. He then filed suit.
    Issues: Exemption 6 – Invasion of privacy, Exemption 7(C) – Invasion of privacy concerning law enforcement records, Exemptions, Litigation – Sanctions, Segregability – Disclosure of all non-exempt records
  2. Rocky Mountain Wild, Inc v. U.S. Forest Service et al (filed Sep 9, 2014)
    Rocky Mountain Wild, Inc., a non-profit organization seeking to protect wildlands in the Southern Rockies, submitted a FOIA request to the U.S. Forest Service for records concerning the Village at Wolf Creek Access Project. The agency provided some records but withheld more than 1600 pages under Exemption 4, (confidential business information), Exemption 5 (privileges), and Exemption 6 (invasion of privacy). The organization appealed the denial, but after finding the appeal had still not been processed, Rocky Mountain Wild filed suit.
    Issues: Exemption 4 – Confidential business information, Exemption 5 – Privileges, Exemption 6 – Invasion of privacy, Exemptions, Litigation – Attorney’s fees
  3. CENTER FOR BIOLOGICAL DIVERSITY v. U.S. FISH AND WILDLIFE SERVICE et al (filed Sep 9, 2014)
    The Center for Biological Diversity submitted a FOIA request to U.S. Fish and Wildlife Services for records concerning the impact of the proposed Keystone Pipeline Project on various migratory species. The agency eventually told the Center that it was referring the documents to the Department of State, which had jurisdiction over the decision to approve the pipeline. The Center appealed the agency’s decision to refer the records to State and after hearing nothing further, the Center filed suit.
    Issues: Litigation – Attorney’s fees, Search – Referral, Withholding not related to exemption claims
  4. SAINT JOSEPH HEALTH SYSTEM, INC. v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES (filed Sep 9, 2014)
    Saint Joseph Health System filed suit against the Department of Health and Human Services to block disclosure of records provided by Saint Joseph in the course of an investigation of cardiology procedures at Saint Joseph – London, one of six hospitals in Kentucky operated by Saint Joseph Health System. The investigation resulted in a Corporate Integrity Agreement with the Office of the Inspector General. The Poppe Law Firm submitted a FOIA request for the CIA records and the agency provided predisclosure notification to Saint Joseph. Saint Joseph indicated a number of records it thought should be withheld by the agency. The agency agreed to some redactions but told Saint Joseph that it planned to disclose other records Saint Joseph claimed were protected under Exemption 4 (confidential business information). Saint Joseph then filed a reverse-FOIA suit under the Administrative Procedure Act to block disclosure of the disputed records.
    Issues: Litigation – In camera review, Litigation – Reverse-FOIA
  5. JUDICIAL WATCH, INC. v. U.S. DEPARTMENT OF JUSTICE (filed Sep 9, 2014)
    Judicial Watch submitted a FOIA request to the Bureau of Prisons for any records concerning the confinement of Jesse Jackson, Jr. The agency acknowledged receipt of the request but indicated that it would not process the request without a privacy waiver. Judicial Watch then filed suit.
    Issues: Adequacy – Search, Failure to respond within statutory time limit, Litigation – Attorney’s fees, Litigation – Vaughn index
  6. HINZ v. UNITED STATES DEPARTMENT OF TREASURY et al (filed Sep 10, 2014)
    The Internal Revenue Service claimed that Steven Hinz had violated agency regulations pertaining to tax preparers. Hinz denied that he was a tax preparer and filed suit against the agency under the Privacy Act for failure to maintain complete and accurate records, and failure to provide an accounting of disclosures.
  7. Letterese v. Internal Revenue Service (filed Sep 10, 2014)
    Peter Letterese submitted a FOIA request to the Atlanta office of the IRS for records of an investigation pertaining to him. He was told that copies of the records would cost $5,980 in paper form. Letterese then requested the records in electronic format. After repeated failed attempts to access the records from the CDs provided by the agency, Letterese asked the agency to provide a Vaughn index of the records. The agency told Letterese it was not required to provide a Vaughn index and Letterese filed suit.
    Issues: Choice of format, Litigation – Attorney’s fees, Litigation – Vaughn index
  8. (PS) Yegorov v. McBrien (filed Sep 11, 2014)
    Yegorov Dmitriy alleged that Sacramento County Court Commissioner Peter McBrien acted improperly in granting a divorce to Melnichuk Nelya. Aside from allegations of torture, abuse, and violations of the Constitution, Dmitriy does not make a claim for disclosure of any records.
  9. ELECTRONIC PRIVACY INFORMATION CENTER v. DEPARTMENT OF DEFENSE (filed Sep 11, 2014)
    EPIC submitted a FOIA request to the Department of Defense for records concerning e-vote system testing. EPIC requested expedited processing, inclusion in the news media fee category, and a public interest fee waiver. The agency acknowledged receipt of the request, but did not make a determination or address EPIC’s requests for expedited processing, fee category, and fee waiver. EPIC then filed suit.
    Issues: Expedited processing, Failure to respond within statutory time limit, Fee Category – Media or Educational, Public Interest Fee Waiver
  10. Tunnell v. U.S. Department of Defense (filed Sep 11, 2014)
    Harry Tunnell submitted a FOIA request to the Defense Department’s Office of Inspector General for records concerning the investigation of a complaint he had filed. The OIG eventually sent 75 pages, which Tunnell believed were not responsive to his request. He submitted a second request to the Department of the Army for records concerning investigations conducted by LTG Curtis Scaparrotti of brigade commanders under his command. After repeated contacts with the agency, Tunnell received nothing further in response to his second request. He sent a third request to Joint Base Lewis-McChord for training videos. He heard nothing further in response to this third request. He submitted a fourth request to Joint Base Lewis-McChord for court martial transcripts related to the testimony of an expert witness. He was told his request had been transferred to the Army Court of Appeals, but he heard nothing further in response to the request. Tunnell then filed suit.
    Issues: Choice of format, Failure to respond within statutory time limit, Litigation – Attorney’s fees, Public Interest Fee Waiver
  11. PATRIOTS FOUNDATION v. DEPARTMENT OF TREASURY (filed Sep 12, 2014)
    The Patriots Foundation submitted a FOIA request to the Department of the Treasury for records concerning any communications with Sen. Harry Reid and Democratic fundraiser Tom Steyer between May 1, 2014 and June 30, 2014. The agency acknowledged receipt of the request, but after several failed attempts to contact the agency concerning the request, the Patriots Foundation filed suit.
    Issues: Failure to respond within statutory time limit, Litigation – Attorney’s fees
  12. United States Merchant Marine Academy Alumni Association and Foundation v. United States Department of Transportation Maritime Administration et al (filed Sep 12, 2014)
    Because of various adverse actions the Department of Transportation’s Maritime Administration had allegedly taken against the U.S. Merchant Marine Academy Alumni Association and Foundation, the Association submitted 11 FOIA requests to the agency for a variety of records. Although the Association made an advance payment of $11,000 for processing its requests, the Association and the agency got into a dispute over processing its requests, including the agency’s repeated attempts to try to get the Association to withdraw its requests. The Association finally filed suit.
    Issues: Fees – Advance Payment, Litigation – Attorney’s fees, Litigation – Sanctions – Referral to Special Counsel, Withholding not related to exemption claims
  13. Brickman v. United States Department of Agriculture et al (filed Sep 12, 2014)
    James Brickman submitted a FOIA request to the Department of Agriculture for records concerning support for statements made by the Intermediary Relending Program. After appealing the agency’s failure to respond within the statutory time limit, the agency told Brickman that it would cost $690 to process his request. The agency also rejected his request for a fee waiver. Brickman then filed suit.
    Issues: Litigation – Attorney’s fees, Public Interest Fee Waiver, Withholding not related to exemption claims

In addition, we have added 2 documents from 1 case, with an earlier filing date, that has recently appeared on PACER.

  • Posner v. Johnson et al (filed Sep 4, 2014)
    Jonathan Posner submitted a FOIA request to U.S. Customs and Border Protection concerning the denial of his application to join CBP’s Global Entry Program. He also sent requests to U.S. Customs and Immigration Enforcement and the U.S. Postal Inspection Service for records concerning the denial of his application. The Postal Service told Posner it had no records and ICE told Posner that it could not find any responsive records. Posner had nothing further from CBP and filed suit.
Sep 11 14

FOIA Activity: 15 New Procedural or Substantive Decisions

by foiaproj

We have added 15 decisions of a procedural or substantive nature filed between August 31, 2014 and September 6, 2014. These are associated with 15 FOIA cases pending in federal district court. Note that because there can be delays between the date a decision is made and when it shows up on PACER, this listing includes only decisions that appeared on PACER during this period.

Click on the date to view the full text of the decision. Click on a case title below to view other details for that case, including links to the docket report and complaint.

  1. ARW 3:2011cv03043Adams v. United States Department of LABOR/OSHA et al
    • September 5, 2014: OPINION AND ORDER granting [61] Motion for Summary Judgment; declining to adopt [64] Report and Recommendations. Signed by Honorable Timothy L. Brooks on September 5, 2014. (jn)
  2. AZ 4:2013cv00080Star Publishing Company et al v. United States Fish and Wildlife Service et al
    • September 5, 2014: ORDER ADOPTING [48] Report and Recommendation.Defendants need not further redact the documents at issue. The Courts staff shall return the in camera documents (discussed in this Order and the Courts April 23, 2014, Order) and the emails between t he magistrate judge and Defendants counsel to counsel for Defendants. Counsel for Defendants shall retain the documents for any appellate review. The Clerk of Court shall enter judgment and shall then close its file. Signed by Judge Cindy K Jorgenson on 9/3/14. (SMBE)
  3. CAN 4:2011cv05221Electronic Frontier Foundation v. Department of Justice
    • September 3, 2014: ORDER by Judge Yvonne Gonzalez Rogers granting in part [93] Motion for Extension of Time to File to 11/14/14. (fs, COURT STAFF) (Filed on 9/3/2014)
  4. CAN 4:2012cv01013First Amendment Coalition v. U.S. Department of Justice
    • September 2, 2014: ORDER SETTING BRIEFING SCHEDULE. Motions due by 9/25/2014; Responses due by 10/10/2014; Replies due by 10/24/2014. Signed by Judge Claudia Wilken on 9/2/2014. (ndr, COURT STAFF) (Filed on 9/2/2014)
  5. CO 1:2011cv02544Evans v. Central Intelligence Agency
    • September 2, 2014: OPINION AND ORDER granting [53] Motion for Summary Judgment by Chief Judge Marcia S. Krieger on 9/2/14.(dkals, )
  6. CO 1:2013cv01722Brown et al v. Perez
    • September 3, 2014: COURTROOM MINUTES for proceedings held before Judge Raymond P. Moore: Trial Preparation Conference held on 9/3/2014. [66] Plaintiff's Request for the Court to Take Judicial Notice is DENIED. Hearing on the Motions for Summary Judgment, Docket Entries [41] and [52] , is set for 9/9/2014 at 2:00 PM in Courtroom A 601 before Judge Raymond P. Moore. Court Reporter: Tammy Hoffschildt. (cpear) Modified on 9/4/2014 to correct text (cpear).
  7. CO 1:2013cv02811Western Energy Alliance v. U.S. Fish and Wildlife Service
    • September 2, 2014: OPINION AND ORDER DENYING MOTION FOR ATTORNEY FEES: Plaintiff Western Energy Alliance's Motion for Attorney Fees and Costs [13] is DENIED. by Chief Judge Marcia S. Krieger on 9/2/14. Text Only Entry(msksec, )
  8. DC 1:2011cv00951CITIZENS FOR RESPONSIBILITY AND ETHICS IN WASHINGTON v. FEDERAL ELECTION COMMISSION
    • September 5, 2014: MEMORANDUM OPINION. Signed by Judge Colleen Kollar-Kotelly on September 5, 2014. (NS)
  9. DC 1:2011cv01256LABOW v. DEPARTMENT OF JUSTICE
    • September 4, 2014: MEMORANDUM OPINION AND ORDER granting defendant Department of Justice's motion [32] for summary judgment. Signed by Judge Barbara Jacobs Rothstein on 9/4/14. (lcrwr2)
  10. DC 1:2011cv01681PUBLIC CITIZEN v. DEPARTMENT OF HEALTH AND HUMAN SERVICES
    • September 5, 2014: MEMORANDUM OPINION regarding the defendant's [51] Renewed Motion for Summary Judgment; defendant-intervenor Pfizer Inc.'s [47] Renewed Motion for Summary Judgment; defendant-intervenor Purdue Pharma L.P.'s [50] Renewed Motion for Summary Judgment; and the plaintiff's [53] Renewed Motion for Summary Judgment. Signed by Judge Beryl A. Howell on September 5, 2014. (lcbah1)
  11. DC 1:2012cv01665CONSERVATION FORCE v. JEWELL et al
    • September 2, 2014: MEMORANDUM OPINION granting in part and denying in part Defendants' [16] Motion for Summary Judgment, and denying Plaintiff's 18 Cross Motion for Summary Judgment. See attached Opinion for details. Signed by Judge Ketanji Brown Jackson on 09/02/2014. (lckbj3) (Main Document 25 replaced on 9/3/2014 with corrected signature date) (ztnr, )
  12. DC 1:2013cv01020TAITZ v. DONAHUE et al
    • September 5, 2014: MEMORANDUM Signed by Judge Royce C. Lamberth on 9/4/2014. (zmm, )
  13. DC 1:2013cv01532COMPETITIVE ENTERPRISE INSTITUTE v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
    • September 4, 2014: MEMORANDUM AND OPINION. Signed by Judge Rosemary M. Collyer on 9/4/2014. (lcrmc1)
  14. ILS 3:2014cv00908Henson v. Department of Health and Human Services et al
    • September 2, 2014: ORDER DENYING WITHOUT PREJUDICE [3] 4 [5] 6 [7] 8 and [9] Signed by Magistrate Judge Donald G. Wilkerson on 9/2/14. (sgp)
  15. NYS 1:2012cv04880Gelb v. Federal Reserve Bank of New York et al
    • September 5, 2014: OPINION AND ORDER re: [57] CROSS MOTION for Discovery filed by Bernard Gelb, [48] MOTION for Summary Judgment filed by Federal Reserve Bank of New York. For the reasons set forth within, Defendant's Motion for Summary Judgment (ECF No. 48) is DENIED without prejudice. Plaintiff's Cross-Motion for Discovery (ECF No. 57) is DENIED. Defendant should inform the Court via letter by October 1, 2014, whether it will renew its motion for summary judgment, and propose a briefing schedule jointly with Plaintiff. SO ORDERED. (Signed by Judge Andrew L. Carter, Jr on 9/5/2014) (ajs)
Sep 11 14

26 new FOIA court documents, plus case descriptions

by foiaproj

We have added 24 documents from 4 FOIA cases filed between August 31, 2014 and September 6, 2014. Note that there can be delays between the date a case is filed and when it shows up on PACER. If there are filings from this period that have yet to be posted on PACER, this FOIA Project list may not be complete.

Click on a case title below to view details for that case, including links to the associated docket and complaint documents.

  1. JUDICIAL WATCH, INC. v. DEPARTMENT OF DEFENSE (filed Sep 4, 2014)
    1. Judicial Watch submitted a FOIA request to the U.S. Africa Command for records from the Africa Command’s operation center between Sept. 10, 2012 to Sept. 13, 2012 pertaining to the attack on the U.S. consulate in Benghazi. When the agency failed to respond within the statutory time limit, Judicial Watch filed suit.
    Issues: Adequacy – Search, Litigation – Attorney’s fees, Litigation – Vaughn index, Segregability – Disclosure of all non-exempt records
  2. JUDICIAL WATCH, INC. v. DEPARTMENT OF HOMELAND SECURITY (filed Sep 4, 2014)
    Judicial Watch submitted a FOIA request to Immigration and Customs Enforcement for all records pertaining to the Enforcement & Removal Operations Field Office Juvenile Coordination Meeting held in Washington from February 25 to February 27, 2014. The agency acknowledged receipt of the request, but after hearing nothing further, Judicial Watch filed suit.
    Issues: Adequacy – Search, Litigation – Attorney’s fees, Litigation – Vaughn index, Segregability – Disclosure of all non-exempt records
  3. JUDICIAL WATCH, INC. v. DEPARTMENT OF JUSTICE (filed Sep 4, 2014)
    Judicial Watch submitted a FOIA request to the Department of Justice for records concerning Operation Choke Point. The agency acknowledged receipt of the request, but after hearing nothing further, Judicial Watch filed suit.
    Issues: Adequacy – Search, Litigation – Attorney’s fees, Litigation – Vaughn index, Segregability – Disclosure of all non-exempt records
  4. JUDICIAL WATCH, INC. v. U.S. DEPARTMENT OF STATE (filed Sep 4, 2014)
    Judicial Watch submitted a FOIA request to the Department of State for records created in response to the attack on the U.S. consulate in Benghazi. The agency acknowledged receipt of the request, but after hearing further, Judicial Watch filed suit.
    Issues: Adequacy – Search, Litigation – Attorney’s fees, Litigation – Vaughn index, Segregability – Disclosure of all non-exempt records

In addition, we have added 2 documents from 1 case, with an earlier filing date, that has recently appeared on PACER.

  • Van Dyke v. F.C.C. et al (filed Aug 19, 2014)
    Christel Van Dyke submitted a FOIA request to the Federal Communications Commission for records concerning her cell phone number. The agency located eight documents and released them to Van Dyke. Van Dyke appealed the agency’s search, which was upheld. Van Dyke then filed suit.
Sep 5 14

PACER Upgrade Leaves Electronic Warehouse of Court Records Incomplete

by Greg Munno

Research and advocacy groups are exploring ways to restore access to the more than 800,000 cases that were recently removed from PACER, the electronic search and retrieval system for federal court documents.

It is a task made all the more difficult since the records were taken down without public notice or consultation.

With advanced notice, groups seeking to compile and make available federal court documents could have focused on the records that were targeted for removal, said Brian Carver, an assistant professor at the University of California at Berkeley School of Information and director of the Free Law Project. The Free Law Project and Princeton University have teamed up to create RECAP the Law, a browser extension that captures documents downloaded from PACER (at the standard 10 cents-a-page rate) and then makes them available for free on the Web.

“We could have asked RECAP users to focus on the court cases being removed, although it is not clear that we would have made a dent because of the massive number of documents,” Carver said. “Still, we could have made the effort, or perhaps teamed with a commercial provider like Bloomberg to make sure these documents were still available. I also suspect there were technical solutions that, if the right experts were consulted, would have allowed those documents to remain on PACER. If they are in one database, you should be able to migrate them to another.”

Carver is now part of a group spearheaded by Public.Resource.Org that has written to the chief judges of the five affected courts requesting access to digital copies of the records so that they can be made available.

Other efforts are underway as well. Holly M. Riccio, president of the American Association of Law Libraries, said the AALL government relations staff has been in discussions with the Administrative Office of the U.S. Courts to advocate for restoration of the documents, to learn about additional changes that may be coming to PACER, and to encourage a more consultative approach to any future changes to the system.

The changes took place on either Aug. 10 or 11. The announcement of the change went up at the same time the documents were removed, an AOUSC spokesperson said. Concerns about the missing cases began to surface last week.

AOUSC spokesman Charles Hall said that the documents were removed because upgrades to PACER are incompatible with the record management systems of a handful of courts. He said that only about 800,000 cases out of more 33 million were affected. He added that all the cases removed are closed, and that the majority come from a single court, the California Central Bankruptcy Court.

“In addition to being closed cases, they happen to be cases that few seemed to need access to,” Hall said. “The removed cases accounted for less than 1/10th of 1 percent of total search requests on PACER.”

But as the BBC pointed out, some of the affected cases are of significant historical interest, including Ricci v DeStefano, a high-profile racial discrimination case heard on appeal by Sonia Sotomayor – now a Supreme Court Justice – when she was on the Second Circuit Court of Appeals. All Second Circuit Court of Appeals cases filed prior to 2010 are among those removed by the courts from PACER.

PACER Notice

The notice posted to PACER about the removed cases.

read more…

Sep 4 14

FOIA Activity: 10 New Procedural or Substantive Decisions

by foiaproj

We have added 10 decisions of a procedural or substantive nature filed between August 24, 2014 and August 30, 2014. These are associated with 9 FOIA cases pending in federal district court. Note that because there can be delays between the date a decision is made and when it shows up on PACER, this listing includes only decisions that appeared on PACER during this period.

Click on the date to view the full text of the decision. Click on a case title below to view other details for that case, including links to the docket report and complaint.

  1. CAE 2:2012cv02601Truthout v. Department of Justice
    • August 29, 2014: ORDER signed by Judge Lawrence K. Karlton on 8/29/2014 DIRECTING defendant United States Department of Justice to electronically file under seal an unredacted version of the in camera, ex parte declaration of David Hardy within 14 days from this order. To this end, a pdf version of the unredacted declaration should be emailed to ApprovedSealed@caed.uscourts.gov. (Donati, J)
  2. CAN 3:2012cv05074Center on Race Poverty & The Environment v. United States Environmental Protection Agency
    • August 26, 2014: ORDER re Vaughn Index. Signed by Judge Laurel Beeler on 8/26/2014. (lblc1S, COURT STAFF) (Filed on 8/26/2014)
  3. CAN 4:2012cv00164Electronic Frontier Foundation v. U.S. Department of Transportation
    • August 28, 2014: ORDER Granting Continuance of Case Management Conference Re Joint Case Management Statement (26 in 4:12-cv-05581-CW and 42 in 4:12-cv-00164-CW). Case Management Statement due by 9/24/2014; Case Management Conference set for 10/1/2014 02:00 PM. Signed by Judge Claudia Wilken on 8/28/2014. (ndr, COURT STAFF) (Filed on 8/28/2014)
  4. DC 1:2012cv01220GAMBOA v. EXECUTIVE OFFICE OF U.S. ATTORNEY et al
    • August 26, 2014: MEMORANDUM AND OPINION. Signed by Judge Richard J. Leon on 08/25/14. (tb, )
  5. DC 1:2014cv00476ELKINS v. FEDERAL AVIATION ADMINISTRATION
    • August 28, 2014: MEMORANDUM OPINION re [23] Order. Signed by Judge James E. Boasberg on 08/28/14. (lcjeb1)
  6. NYS 1:2004cv04151American Civil Liberties Union et al v. Department of Defense et al
    • August 27, 2014: ORDER AND OPINION GRANTING, IN PART, PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT re: [493] SEVENTH MOTION for Partial Summary Judgment by Plaintiffs filed by Americ an Civil Liberties Union, [495] MOTION for Summary Judgment filed by Department of Defense, Department of the Army. As set forth within, plaintiffs' motion is granted in part and the government's motion is denied. Counsel shall atte nd a conference at 3 p.m. on September 8, 2014. The Clerk mark the motions (Doc. Nos. 493 and 495) terminated. The case shall remain open for two issues: the issue discussed in this Order and Opinion and the issue of fees and allowances. SO ORDERED. (Signed by Judge Alvin K. Hellerstein on 8/27/2014) (ajs)
  7. PAE 2:2012cv04839SAMAHON v. FEDERAL BUREAU OF INVESTIGATION et al
    • August 25, 2014: MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 8/25/2014. 8/25/2014 ENTERED AND COPIES E-MAILED.(sg, )
    • August 25, 2014: ORDERED THAT DEFENDANTS' SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT (ECF NO. [23] ) AND SECOND SUPPLEMENTAL MOTION FOR SUMMARY JUDGMENT (ECF NO. [35] ) ARE DENIED. IT IS FURTHER ORDERED THAT PLAINTIFF'S RENEWED MOTION FOR SUMMARY JUDGMENT (ECF NO. [27] ) AND THIRD MOTION FOR SUMMARY JUDGMENT (ECF NO. [38] ) ARE GRANTED IN PART AND DENIED IN PART AS FOLLOWS: 1. THE FBI'S FAILURE TO PROVIDE PLAINTIFF WITH AN UNREDACTED VERSION OF THE DELOACH MEMORANDUM IS DECLARED UNLAWFUL; 2. THE FBI IS ORDERED TO PROMPTLY PROVIDE PLAINTIFF WITH AN UNREDACTED VERSION OF THE DELOACH MEMORANDUM; 3. THE FBI'S CATEGORICAL DENIAL OF PLAINTIFF'S REQUEST FOR FBI FILE NO. 62-HQ-110654 IS DECLARED UNLAWFUL; 4. THE FBI IS ORDERED TO REVIEW FBI FILE NO. 62-HQ-110654 AGAIN IN LIGHT ON THE COURT'S RULING AND TO RELEASE TO PLAINTIFF ANY REASONABLY SEGREGABLE, NONEXEMPT MATERIAL CONTAINED WITHIN THE FILE; 5. PLAINTIFF'S REQUEST FOR INJUNCTIVE RELIEF COMPELLING THE FBI TO PRODUCE THE ENTIRETY OF FBI FILE NO. 62-HQ-110654 IS DENIED; 6. ANY ADDITIONAL RELIEF SOUGHT UNDER THE ADMINISTRATIVE PROCEDURE ACT IS DENIED. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 8/25/2014. 8/25/2014 ENTERED AND COPIES E-MAILED.(sg, )
  8. SC 6:2014cv02541Myers v. Stephens et al
    • August 27, 2014: OPINION and ORDER RULING ON REPORT AND RECOMMENDATION for [19] Report and Recommendation, DISMISSING Defendants David C. Stephens, Assistant US Attorney, William N. Nettles, US Attorney for S.C., and Eric Holder, Jr., US Attorney General without prejudice and without issuance and service of process. Signed by Honorable Henry M Herlong, Jr on 8/27/14. (sfla)
  9. UT 2:2008cv00788Trentadue v United States Central Intelligence Agency
    • August 26, 2014: MEMORANDUM DECISION and Order Setting Evidentiary Hearing on Witness Tampering Allegations-granting [191] Motion to Strike ; denying [203] Motion to Strike ; ( Form due by 9/10/2014., Evidentiary Hearing set for 11/13/2014 1 0:00 AM in Rm 8.100 before Judge Clark Waddoups, with the possibility of extending to 11/14/14 if necessary) See Order for details. Signed by Judge Clark Waddoups on 8/26/14. Court Address: NEW COURTHOUSE – 351 South West Temple, Salt Lake City, Utah(jmr) Modified on 8/27/2014 took out text regarding form due (jmr).
Sep 4 14

14 new FOIA court documents, plus case descriptions

by foiaproj

We have added 14 documents from 4 FOIA cases filed between August 24, 2014 and August 30, 2014. Note that there can be delays between the date a case is filed and when it shows up on PACER. If there are filings from this period that have yet to be posted on PACER, this FOIA Project list may not be complete.

Click on a case title below to view details for that case, including links to the associated docket and complaint documents.

  1. Henry Provost v. City of Sanger (filed Aug 26, 2014)
    Henry Provost submitted a request to the City of Sanger for clarification of the meaning of a sentence in the “Measure S” ordinance. The “Measure S” ordinance restricts the City of Sanger from using any tax revenues raised by Measure S to pay salaries or overhead expenses for the police or fire departments; such revenues must be spent solely on public safety projects. The City did not respond to Provost’s request and he filed suit in federal court. This is not a FOIA case because the federal FOIA applies only to federal agencies, not state or local agencies. Sanger may have a cause of action in state court under the California Public Records Act, but not in federal court under FOIA.
    Issues: disclosure of records
  2. Martinez v. United States Department of Justice Central Intelligence Agency (filed Aug 26, 2014)
    Ricardo Oscar Martinez submitted a number of FOIA requests to federal agencies concerning his belief that he was the subject of government surveillance and a victim of an Argentinean espionage operation. Unsatisfied with the agencies’ apparent inability to find any responsive records, Martinez filed suit.
    Issues: disclosure of any relevant records
  3. Reedom v. Colvin et al (filed Aug 28, 2014)
    James Patrick Reedom submitted FOIA requests to the Social Security Administration and the IRS. The Social Security Administration did not respond. The IRS provided some records but withheld others under Exemption 4 (confidential business information). The IRS denied Reedom’s appeal. He then filed suit. Because he lived in Texas, the case was transferred from the Southern District of New York, where it was originally filed, to the Northern District of Texas.
    Issues: disclosure of records, expeditious proceedings
  4. Beam v. Internal Revenue Service (filed Aug 29, 2014)
    Troy Beam made several FOIA requests to the IRS for records pertaining to any actions taken by a Special Agent regarding his taxes. The agency responded that it had located 41 boxes of potentially responsive records but that all of them were being withheld under Exemption 3 (other statutes) because they were protected by Federal Rule 6(e) on grand jury secrecy. Another 281 pages were withheld under Exemption 7(C) (invasion of privacy concerning law enforcement records), Exemption 7(D) (confidential sources), and Exemption 7(E) (investigative methods and techniques). Beam appealed and his appeal was declined for lack of jurisdiction. Beam then filed suit.
    Issues: disclosure of all records, attorney’s fees
Aug 28 14

50 new FOIA court documents, plus case descriptions

by foiaproj

We have added 50 documents from 9 FOIA cases filed between August 17, 2014 and August 23, 2014. Note that there can be delays between the date a case is filed and when it shows up on PACER. If there are filings from this period that have yet to be posted on PACER, this FOIA Project list may not be complete.

Click on a case title below to view details for that case, including links to the associated docket and complaint documents.

  1. CAUSE OF ACTION v. INTERNAL REVENUE SERVICE et al (filed Aug 18, 2014)
    Cause of Action submitted FOIA requests to multiple cabinet agencies for records concerning any referrals to the White House by agencies pursuant to a 2009 memo from former White House General Counsel Greg Craig requiring agencies to consult the White House when records involved “White House equities.” When none of the agencies had yet responded months after the request was received, Cause of Action filed suit against all the agencies that had received the request.
    Issues: require agencies to make final determination, disclosure of responsive records within 30 days of court order, attorney’s fees
  2. Western Watersheds Project v. Moseley, et al. (filed Aug 18, 2014)
    Western Watersheds Project requested permission to inspect copies of Allotment Management Plans at the U.S. Forest Service office at Lincoln National Forest. The agency told the organization that there would be a fee to cover the hourly costs of a staff member to monitor their inspection of the records. Western Watersheds Project pointed out that agency FOIA regulations prohibited charging a fee for inspecting records and appealed the agency’s decision. The agency then closed their FOIA request. Western Watersheds Project filed suit.
    Issues: prohibit agency from charging fees for inspection, promptly make records available, attorney’s fees
  3. GOMEZ et al v. US DEPARTMENT OF JUSTICE (filed Aug 19, 2014)
    Patrick Lawrence Gomez, a retired officer of the Los Angeles Sheriff’s Department, submitted a FOIA request to the FBI jointly with Judicial Watch for records of threats or investigations of threats to Gomez and his family. Gomez also asked for his records under the Privacy Act. The agency denied the request, claiming the records were protected by Exemption 7(A) (ongoing investigation or proceeding). Gomez and Judicial Watch appealed the denial, which was upheld. They then filed suit.
    Issues: conduct adequate search, disclosure of records by date certain, production of Vaughn index, attorney’s fees
  4. Henson v. Department of Health and Human Services et al (filed Aug 19, 2014)
    Donald Henson, a former FDA field investigator, made numerous requests to the FDA for records concerning an insulin pump manufactured by Meditronic MiniMed that Henson believed had serious deficiencies. After reviewing the agency’s public files on the device, Henson ended up with 17 FOIA requests for information concerning the pre-market approval application for the device. Although he had submitted the requests individually and considered them separate requests, the agency apparently aggregated many of them for appeals purposes. Henson eventually received 7,000 pages of a possible 178,000 pages. He requested help from the agency’s Public Liaison, but was unsatisfied with the response that his requests were still being processed. He then filed suit.
    Issues: improper withholding, require agency to process requests individually by date of receipt, finding that Public Liaison acted improperly, improper aggregation of requests, production of Vaughn index within 30 days of court order
  5. RYAN v. FEDERAL BUREAU OF INVESTIGATION et al (filed Aug 20, 2014)
    Alireza Shishechi emigrated from Iran in 1976. He became a naturalized citizen and legally changed his name to Cina Ryan in 1986. Although he felt he was being watched, Ryan decided to visit his family in Iran in 2009 and bought a round-trip ticket from Miami to London to Tehran. When he arrived in London, he was detained and subsequently deported to the United States. Several years later, after failing to find an attorney willing to pursue his case, Ryan submitted a FOIA request to the FBI for his records. The agency said it could find no records and that it could neither confirm nor deny that he was on a government watch list. He appealed the denial to the Office of Information Policy, which upheld the FBI’s decision. Ryan then filed suit.
    Issues: disclosure of records
  6. MARTIN EDWARDS & ASSOCIATES, LLC v. DEPARTMENT OF HEALTH AND HUMAN SERVICES (filed Aug 21, 2014)
    Martin Edwards & Associates submitted a FOIA request to NIH for records concerning a contract to provide security services and information pertaining to allegations against the company. NIH acknowledged receipt of the request, but after hearing nothing further from the agency, the company appealed. After hearing nothing concerning its appeal, the company filed suit.
    Issues: improper withholding, disclosure of records, attorney’s fees
  7. FREEDOM WATCH, INC. v. NATIONAL SECURITY AGENCY et al (filed Aug 21, 2014)
    Freedom Watch submitted a FOIA request to the National Security Agency, the CIA, and the Defense Department for records concerning the shooting down of Extortion 17, resulting in the deaths of 30 U.S. soldiers. Freedom Watch also requested information pertaining to a congressional hearing on Feb. 27, 2014, particularly records concerning Larry Klayman, Chairman and General Counsel of Freedom Watch. After receiving nothing substantive from the agencies, Freedom Watch filed suit.
    Issues: conduct adequate search, disclosure of records by date certain, production of Vaughn index, attorney’s fees
  8. v. American Civil Liberties Union of San Diego and Imperial Counties et al (filed Aug 22, 2014)
    The ACLU of San Diego and Imperial County submitted two FOIA requests to U.S. Customs and Border Protection through the FOIA Online portal. The first request was for statistics on the number of individuals removed because of expedited removal or voluntary return, the number of individuals referred because of asylum fraud or illegal entry, and the number of individuals referred to an asylum officer because of credible fear. The second request asked for legal memoranda, policy and guidelines regarding expedited removal and voluntary return. After hearing nothing further from the agency, the ACLU filed suit.
    Issues: grant expedited processing, conduct adequate search, waive or limit fees, prompt disclosure of records, attorney’s fees
  9. Tempest v. National Energy Technology Laboratory et al (filed Aug 22, 2014)
    Rone Tempest, a reporter for WyoFile.com, submitted a FOIA request to the National Energy Technology Laboratory for records related to the 2012 suspension of 2009 and 2010 federal stimulus grants made to the North American Power Group by NETL. The agency denied the request under Exemption 7(A) (interference with ongoing investigation or proceeding). Tempest appealed and the agency upheld its original decision. Tempest then filed suit.
    Issues: disclosure of records, expedited proceedings, attorney’s fees
Aug 28 14

FOIA Activity: 8 New Procedural or Substantive Decisions

by foiaproj

We have added 8 decisions of a procedural or substantive nature filed between August 17, 2014 and August 23, 2014. These are associated with 8 FOIA cases pending in federal district court. Note that because there can be delays between the date a decision is made and when it shows up on PACER, this listing includes only decisions that appeared on PACER during this period.

Click on the date to view the full text of the decision. Click on a case title below to view other details for that case, including links to the docket report and complaint.

  1. CAE 1:2013cv01122(PS) Leonard Brown v. U.S. Department of Justice Drug Enforcement Administration
    • August 21, 2014: Order extending time, signed by Magistrate Judge Sheila K. Oberto on 8/20/2014. (Defendants Responses due by 9/8/2014) (Figueroa, O)
  2. CAN 3:2011cv00846The Sierra Club et al v. United States Environmental Protection Agency
    • August 20, 2014: ORDER FOR PLAINTIFFS TO SUBMIT CHAMBERS COPIES re [80] Declaration in Support filed by The Sierra Club, Environmental Integrity Project, [83] Declaration in Support filed by The Sierra Club, Environmental Integrity Project, [77] MOTIO N for Attorney Fees and Costs filed by The Sierra Club, Environmental Integrity Project, [81] Declaration in Support filed by The Sierra Club, Environmental Integrity Project, [79] Declaration in Support filed by The Sierra Club, Environmental Integrity Project, [82] Declaration in Support filed by The Sierra Club, Environmental Integrity Project, [78] Declaration in Support, filed by The Sierra Club, Environmental Integrity Project. Signed by Judge Maria-Elena James on 8/20/2014. (cdnS, COURT STAFF) (Filed on 8/20/2014)
  3. DC 1:2008cv01252CLEMENTE v. FEDERAL BUREAU OF JUSTICE et al
    • August 18, 2014: ORDER granting in part and denying in part [105] Defendants' Second Renewed Motion for Summary Judgment and denying Plaintiff's motion to file a sur-reply [Dkt. No. 116]. Signed by Judge Barbara Jacobs Rothstein on 8/18/14. (Reed, Heather)
  4. DC 1:2008cv01439NORTH v. UNITED STATES DEPARTMENT OF JUSTICE
    • August 19, 2014: MEMORANDUM AND OPINION. Signed by Judge Colleen Kollar-Kotelly on 8/19/2014. (lcckk3)
  5. DC 1:2012cv01755SACK v. DEPARTMENT OF JUSTICE
    • August 21, 2014: MEMORANDUM OPINION re: Defendant's [19] MOTION for Summary Judgment. Signed by Judge Christopher R. Cooper on 8/21/2014. (tcr)
  6. DC 1:2013cv01239SIERRA CLUB v. UNITED STATES ARMY CORPS OF ENGINEERS
    • August 18, 2014: MEMORANDUM OPINION granting in part Defendants' [47] and Intervenor's [50] Motions to Partially Dismiss; granting Defendants' [70] and Intervenor's [71] Cross Motions for Summary Judgment; and denying Plaintiffs' [61] Motion for Summary Judgment, [83] Motion to Supplement and Amend First Amended Complaint, and [93] Unopposed Motion to Supplement and Amend First Amended Complaint. Signed by Judge Ketanji Brown Jackson on 8/18/2014. (lckbj2)
  7. DC 1:2013cv01344JUDICIAL WATCH, INC. v. U.S. DEPARTMENT OF JUSTICE
    • August 22, 2014: MEMORANDUM AND OPINION. Signed by Judge Richard J. Leon on 08/21/14. (tb, )
  8. DC 1:2014cv00055COFIELD v. UNITED STATES OF AMERICA et al
    • August 20, 2014: MEMORANDUM OPINION accompanying final order issued separately this day. Signed by Judge Ketanji Brown Jackson on 8/20/14.(ah)