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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 111636
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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For USA attorney I have a question for someone with USA FOIA

Customer Question

for USA attorney
I have a question for someone with USA FOIA expertise. A federal agency, FRTIB, recently responded to my FOIA request with a 200 p disclosure; it consisted of FRTIB internal emails, extremely heavily redacted. Specifically, almost every line of each email was "blacked out". The agency cites Exemption 5 of the FOIA, specifically, 5 USC552(b)(5). This is the "infamous exemption", know as "Withhold it because you want to rule." Widely abused by agencies. The 'answer' I seek is a a persuasive argument to use when I appeal the agency's response.JA: What state are you in? It matters because laws vary by location.
Customer: I'm in CA; but with all due respect, it's irrelevant; this is federal law, the Freedom of Information ActJA: Has anything been filed or reported?
Customer: I don't follow. This isn't about a legal suit against the agency. Under the Freedom of Information act, I requested info from a federal agency & they responded, but almost all the content was "blacked out", redacted. I will fiel an appeal with that agency. And I need input from someone experienced with FOIA, I need a persuasive argument for the appeal.
JA: Anything else you want the lawyer to know before I connect you?
Customer: Not that I can think of; go ahead & connect me,
Submitted: 30 days ago.
Category: Legal
Expert:  Law Educator, Esq. replied 30 days ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
In order to successfully appeal under FOIA to obtain unredacted information, you have to argue that the information redacted does not fall under the privileges they are claiming. They are claiming the information is subject to privilege in preparation for or for use in litigation. However, there is another way around this and that would be if the agency you are seeking information from is a defendant in the suit, you would send a request for production of documents under the federal rules of civil procedure to make them produce it. Then if they produce redacted information, you would file a motion to compel production and get the court to decide on whether the information properly falls under their privilege exemption. If they are not a party to the suit, you can still request the information through a subpoena served on them and if they will not provide the information without redaction you will again file the motion to compel and the judge would have to review the documents to determine if the redactions are indeed interagency or internal memoranda or letters that would not be available by law to a private party in litigation with the agency (including civil discovery privileges, including deliberative process privilege, attorney–client privilege, and attorney work–product privilege).
FOIA is not the only way for you to pursue the information. If you try an appeal under FOIA you need to argue based on the facts why these documents would be available to anyone in litigation with the agency and how they are not part of one of the privileges claimed.
Please do not forget to leave positive feedback by clicking on the 5 stars at the top of your page , as the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.
Customer: replied 29 days ago.
Law Educator,
Thank you for your detailed response.
But please recall that my original question requested advice on a PERSUASIVE ARGUMENT to use when I appeal FRTIB’s 200p response, almost entirely redacted. <excuse the caps; there's no option for itallic or underlining >
The act provides for only a single appeal. No provision for an appeal of an appeal. So I’ve got to hit the sweet spot on my one & only appeal. After an unproductive appeal, the last resort is working with the FOIA ombudsman ‘OGIS’ which will mediate between the agency and requester. I’ve utilized OGIS several times & was disappointed.
May I ask, have you personally ever played a role in an appeal of an agency’s response which was unacceptable/insufficient/erroneous to the requester ?//In order to successfully appeal under FOIA to obtain unredacted information, you have to argue that the information redacted does not fall under the privileges they are claiming// Please see the attachment. I contend that they are abusing the Exemption, applying it too narrowly. And they are incorrectly “not disclosing reasonably segregable portions after redacting exempt portions” Exemption 5 is notorious in FOIA circles, frequently misused by federal agencies, widely known as the “Withhold it because you can exemption.”
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July 8, 2016 LA Times article: After 50 years the Freedom of Information Act ...
<excerpt> “The final problem is the ease with which agencies can refuse legitimate requests. Under Exemption Five, also known as the “withhold it because you want to” rule, agencies can suppress internal communications that would be inconvenient or incriminating — or simply difficult to process — on the grounds that they constitute an “interagency or intra-agency communication” or “draft.”
SEE: http://www.latimes.com/opinion/op-ed/la-oe-lalwai-winter-levy-foia-50-anniversary-20160708-snap-story.html
(or Google “la times, FOIA, 50years “ )
----------------------------------------------------------------------------------------In response to my FOIA request, this agency’s response was 200p of email chains. Avg of 3 emails per page or 600 individual emails. Only a few are to or from the FRTIB’s general counsel. Some directly to her, others just CC ing her. And the vast majority of the emails were between other employees of the agency.
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ORIGINAL QUESTION I am seeking advice on a Persuasive Argument to use in my appeal. My appeal would of course utilize elements of the below referenced “reasonably segregable portions”. And I anticipate arguing that (for most of the emails) there is no Attorney-Client privilege.
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//They are claiming the information is subject to privilege in preparation for or for use in litigation. However, there is another way around this and that would be if the agency you are seeking information from is a defendant in the suit/// They are not now and will not be a defendant in a suit by us,
///you would send a request for production of documents under the federal rules of civil procedure to make them produce it./// Again, the agency is not a defendant in a suit. And we will not be filing suit.
Customer: replied 28 days ago.
Law Educator,
When you're available, please address my followup. Thank you.
Recall that my original question requested advice on crafting "a PERSUASIVE ARGUMENT" to use when I appeal FRTIB’s 200p response, consisiting of approx 600 individual emails, almost entirely redacted. <excuse the caps; there's no option for italic or underlining >
The act provides for only a single appeal. No provision for an appeal of an appeal. So I’ve got to hit the sweet spot on my one & only appeal.
Expert:  Law Educator, Esq. replied 25 days ago.
Thank you for your reply. Sorry for the delay, as I was out of town on the weekend on a client matter and could not get online.
Please understand, and I get clients in my office all the time who come in and say, "they have me on video tape, get me out of it." What you are asking is nearly the same thing, once the agency states it is for litigation or internal purposes not made available to anyone outside. Please also remember, I do not really know one fact of your case, not one, so to say "provide me a persuasive argument" is a misunderstanding of what this service can do for anyone.
All I can tell you, without knowing one fact, is the general premise, meaning you have to prove in your argument that this information being redacted has nothing to do with internal policy or information not available in litigation or privileged information and explain why.

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