News
Second Circuit Sua Sponte Shrinks Definition of “Agency Records”
In Behar v. DHS, the Second Circuit upheld a Secret Service decision to withhold emails and schedules identifying people Donald Trump met with while under the agency’s protection as a presidential candidate and president-elect. The court’s primary ground was revolutionary: it held that the records, though used by the agency to fulfill its protective mission, were not “agency records” subject to FOIA because the Trump campaign and transition provided them with an expectation of confidentiality and the agency honored that expectation. The ruling bowls over text and precedent and is a potential
Second Circuit Appeal Raises FOIA Question of First Impression
In 2016, Congress amended the Freedom of Information Act to strengthen citizens’ access to information. In resolving the pending appeal filed by the MFIA Clinic in Seife v. FDA, No. 20-4072, the Second Circuit will likely become the first appellate court in the nation to interpret how the new requirements imposed on agencies that wish to withhold information apply to information falling within FOIA’s Exemption 4, the exemption that protects from disclosure “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” 1 The Second Circuit’s
Unpacking the Black Box: MFIA Tackles Algorithmic Accountability in Connecticut
Federal and local governments and agencies are increasingly using algorithms to either influence or determine actions, policies, services, programs, employment, contracting, rulemaking, budgeting, and resource allocation. Algorithms not only reflect human bias, but they can also, without proper checks and procedures, systematically compound human bias to the further disadvantage of marginalized populations. While algorithms may not be wholly determinative in making such decisions, they have a notable influence that must be subjected to scrutiny. However, despite the increasing governmental
No Democracy Without Disclosure: Why the Supreme Court Must Protect the Public’s Right to Know Who’s Behind Dark Money
On January 6, 2021, in the hours before many of the President’s supporters stormed the Capitol in a violent effort to halt Congress’s certification of the Electoral College votes, President Trump spoke at the “March to Save America” rally in Washington’s Ellipse. To the agitated crowd, he urged his supporters to march on the U.S. Capitol and “fight like hell.” In the months since the deadly January 6 riots at the Capitol, some details have become clear. Law enforcement has identified and arrested some suspects, and reporters have analyzed footage from the event to understand how the protesters
Warrantless Border Searches of Electronic Devices Constitutional
The First Circuit ruled this month that warrantless searches of electronic devices at the border do not violate the First or Fourth Amendments. The American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) filed suit on behalf of eleven plaintiffs whose electronic devices had been searched by Customs and Border Protection (CBP) or Immigration and Customs Enforcement (ICE), either at the physical border or upon arrival from an international flight. The plaintiffs challenged policies promulgated by ICE and CBP that authorize border agents to conduct “basic searches” of
FOIA Litigation in the Shadow of the Mueller Investigation
MFIA client and reporter Ken Vogel of the New York Times submitted a FOIA request in August of 2017 to the Foreign Agents Registration Act (FARA) Unit of the Department of Justice.