Justice Blogs

Friday, August 19, 2016

Courtesy of Office for Victims of Crime Director Joye E. Frost and Office of Juvenile Justice and Delinquency Prevention Administrator Robert L. Listenbee

Office for Victims of Crime Director Joye E. Frost and Office of Juvenile Justice and Delinquency Prevention Administrator Robert L. ListenbeeOn a November day in 1999, 14-year-old Kuntrell Jackson accompanied two boys to a video store in Blytheville, Arkansas, to commit a robbery.  On the way there, he learned that one of the boys was carrying a shotgun.  Jackson stayed outside for most of the robbery, but after he entered, one of his co-conspirators shot and killed the store clerk.  Arkansas charged Jackson as an adult with capital felony murder and aggravated robbery, and a jury convicted him of both crimes.  The trial judge imposed a statutorily mandated sentence of life imprisonment without the possibility of parole. 

His case and that of another 14-year-old, Evan Miller, eventually found their way to the U.S. Supreme Court, which ruled in 2012 in Miller v. Alabama that mandatory life sentences without the possibility of parole for juveniles are unconstitutional.  Until he was resentenced, Kuntrell Jackson was one of about 2,500 people in the United States serving life terms without the possibility of parole for crimes committed as juveniles.  Earlier this year, in Montgomery v. Louisiana, the Court ruled that states must apply the Miller ruling retroactively, opening the door to the possibility of resentencing or parole for hundreds of men and women across the country.

Montgomery v. Louisiana builds upon a growing body of Supreme Court decisions based on recent research in adolescent brain development and behavior.  In the first set of cases, Roper v. Simmons and Graham v. Florida, the Court established that children are constitutionally different from adults for sentencing purposes.  Their “lack of maturity” and “underdeveloped sense of responsibility” lead to recklessness, impulsivity and heedless risk-taking.  Adolescents are more easily influenced by their surroundings, prone to peer pressure and unable to foresee the consequences of their actions.  These findings also mean that, over a lifetime, people are amenable to change and redemption.  

Our goal at the Office of Justice Programs (OJP) is to implement juvenile justice reforms that take into account the developmental states of youth while holding them accountable for their actions.  To that end, OJP’s Office of Juvenile Justice and Delinquency Prevention (OJJDP) commissioned two studies—Reforming Juvenile Justice: A Developmental Approach and Implementing Juvenile Justice Reform: The Federal Role—that underscore the importance of adopting a developmental approach to our juvenile justice reform efforts and that provide the clarity needed to ensure the appropriate delivery of justice.

States are beginning to explore the route they will take to implement the Court’s decision regarding individuals sentenced to life without parole as youth, many of whom suffered trauma and violent victimization before they became involved in the justice system.  At the same time, state policymakers and practitioners must think about how they will meet the needs of victims and their loved ones who, as they revisit cases they believed were concluded, may relive some of the most traumatic events and profound losses of their lives.

OJP’s Office for Victims of Crime (OVC) and OJJDP appreciate the deep impact of Montgomery on the lives of the thousands of youth, victims, advocates and justice system stakeholders we serve nationwide.  At this crucial early stage, some jurisdictions are already modeling their responses to Montgomery through steering committees or other collaborations to ensure communication at the state and local levels.  In Pennsylvania, for example, judges, prosecutors, defenders and state parole and corrections officials have been meeting since January 2016 to build a process for handling cases, and the Office of the Victim Advocate, the Department of Corrections and the Board of Probation and Parole joined to release a resource for victims that explains the parole process and role of various stakeholders in their state.

Resources like this, as well as local courts’ collaboration with service providers who understand how to support families, will help ensure that notification and the victims’ reaction to it is handled in a sensitive and trauma-informed manner, which recognizes that healing, participation or justice may look as different to each victim as it does to each inmate.  Such resources can ensure that victims receive information about the progress of their individual cases, opportunities to attend parole or resentencing hearings, and the choice to make themselves heard.  And it means offering resources and support services, including victim-centered restorative justice or opportunities for dialogue, where possible, during or following release. 

OJP stands ready to support the states as they navigate their responses to Montgomery.  We encourage state and local stakeholders, including parole boards, to familiarize themselves with the literature and data regarding adolescent development and adolescent crime and with our Help for Victims Resources page.  OVC anticipates bringing a visiting Fellow on-site in 2017, who will be dedicated to promoting evidence-based resources for meeting victim post-conviction needs.  Other agencies, such as the National Institute of Corrections (NIC), have online and other resources, including NIC’s section devoted to Post-Conviction Victim Services.

Montgomery will have a far-reaching impact, not only on those now eligible for a life beyond the prison walls and their family members, but also on the family members of victims of these crimes.  Together, federal, state and local governments can rise to the challenge and ensure that all who are impacted receive the diversity of support services they may need to find stability and healing along the way.

Friday, August 19, 2016

Courtesy of Principal Deputy Associate Attorney General Bill Baer

Earlier this month, Department of Commerce General Counsel Kelly Welsh and I led a delegation of respected federal judges and other officials to Beijing, China, to join their Chinese judicial counterparts for the inaugural meeting of the U.S.-China Judicial Dialogue in Support of Reform and Economic Growth.  President Obama and Chinese President Xi agreed to establish the dialogue during President Xi’s state visit last September.  The dialogue gives us an opportunity to engage on the topic of judicial reform and to share the U.S. experience ensuring fair, transparent and independent application of the rule of law in the commercial context.

I always enjoy returning to Beijing.  My wife’s parents met in the city in 1947, and my wife was born there in 1949.  I have followed the city’s growth over the years with great interest, and it was a particular privilege to lead our delegation there.

Principal Deputy Associate Attorney General Bill Baer greets Jiang Wei, the Vice Chairman of the Central Leading Group on Judicial System Reform of the Communist Party of China, at the dialogue, which took place Aug. 3 and 4 in Beijing.  The U.S. delegation included officials from the Departments of Justice, Commerce and State and from the Office of the U.S. Trade Representative.  (Photo by Jake Miller, U.S. Department of State)The U.S. judges were Diane Wood, Chief Judge of the U.S. Court of Appeals for the Seventh Circuit; Leonie Brinkema, U.S. District Court Judge of the Eastern District of Virginia; and Lucy Koh, U.S. District Court Judge of the Northern District of California.  The Chinese delegation was led by Jiang Wei, the Vice Chairman of the Central Leading Group on Judicial System Reform of the Communist Party of China, and Tao Kaiyuan, Vice President of the Supreme People’s Court (SPC).  It included senior judges from China’s SPC, the senior judge and president of the Beijing Intellectual Property Court and Chinese legal scholars. 

Our three talented and experienced U.S. judges discussed with senior Chinese judges and other experts topics relevant to commercial cases, ranging from case management to evidence, expert witnesses, amicus briefs, the use of precedents and China’s system of “guiding cases.”  Speakers from both sides gave presentations that explored complex questions on technical areas of law.  The conversations, during the formal meetings and tea breaks, were lively, candid, direct and constructive, highlighting both the similarities in and important differences between the U.S. and Chinese legal and judicial systems.  I told our Chinese hosts that the views our judges expressed would be entirely their own, reflecting our separation of powers and the independence of our judiciary.  Our judges displayed that independence as they weighed in on a range of issues, such as the role of precedents in interpreting statutes and the challenge of balancing public access to information while safeguarding privacy and protecting trade secrets.

Several of the Chinese participants discussed pending cases in U.S. courts involving Chinese defendants.  I believe it was useful for us to air our differences and for our experts to exchange views on technical and sensitive areas of law.  At the meeting, it was clear that although we come from different backgrounds and will not always agree, we all recognize the importance of legal reasoning and that increased transparency is a way of earning the public’s trust in the fairness and objectivity of the judicial system.

Ambassador Baucus, Principal Deputy Associate Attorney General Bill Baer, Central Political and Legal Affairs Commission Secretary Meng Jiangzhu and Central Political and Legal Affairs Commission Secretary General Wang Yongqing. (Photo by chinapeace.gov.cn -- http://www.chinapeace.gov.cn/2016-08/03/content_11360604.htm)The meetings took place at the Rui’an Hotel in Beijing.  The delegation also attended the appeal of a patent case at the recently established Beijing Intellectual Property Court and visited the Chinese SPC Information Center.  Highlighting the support for the dialogue within the Chinese government, senior members of the delegation also met with Meng Jiangzhu, politburo member and head of the Party Central Political and Legal Affairs Commission, to discuss the dialogue, the importance of U.S.-China bilateral economic relations and other issues. 

Thursday, August 18, 2016

The next meeting of the Chief FOIA Officers Council will be held on Thursday, September 15, 2016.  At this meeting, OIP will brief the Council on the feedback received from agencies on the "Release to One is a Release to All" presumption and will provide journalists an opportunity to share their views on the presumption.  The meeting will be held at:

Second Chief FOIA Officers Council Meeting
GSA Central Office - Auditorium

1800 F Street, NW
Washington, DC 20405 
September 15, 2016 - 10am to 12pm

This meeting will be open to the public, and time will be provided for members of the public to address the Council.  If you would like to address the Council at the meeting, either as a journalist or a member of the public, please request this in your registration email.  Written comments pertaining to the “Release to All” presumption policy may be submitted to ReleaseToAll@usdoj.gov.      

While the “release to one is a release to all” presumption is the first topic being considered by the Council, the Director of OIP will also provide an update on the consolidated FOIA portal in anticipation of further engagement with the Council on that topic.       

For security purposes registration for this meeting is required.  Please email DOJ.OIP.FOIA@usdoj.gov with the subject line “CFO Council Meeting – Public” by 5:00 PM on September 7, 2016.

Topic(s):
FOIA, Open Government
Thursday, August 18, 2016

Courtesy of Deputy Attorney General Sally Q. Yates 

When most people think of the Justice Department, they are likely to imagine the most visible parts of our job – the law enforcement agents who investigate crimes or the lawyers who prosecute them.  But the department’s core responsibilities go beyond investigation and prosecution. Unlike most states, the federal government puts its law enforcement agents, criminal prosecutors, and correctional officers all in a single department.  We handle every step from the start of an investigation to the end of a prison sentence.  Our work to house and rehabilitate individuals incarcerated in the Federal Bureau of Prisons is an important part of our responsibility and operations, accounting for 25 percent of the department’s budget every year.

The federal prison population increased by almost 800 percent between 1980 and 2013, often at a far faster rate than the Bureau of Prisons could accommodate in their own facilities.  In an effort to manage the rising prison population, about a decade ago, the bureau began contracting with privately operated correctional institutions to confine some federal inmates.  By 2013, as both the federal prison population and the proportion of federal prisoners in private facilities reached their peak, the bureau was housing approximately 15 percent of its population, or nearly 30,000 inmates, in privately operated prisons.

2013 was also the year that the Department of Justice launched its Smart on Crime Initiative after identifying reforms that would ensure more proportional sentences and effective use of federal resources.  Today, in part as a result of that initiative, we are experiencing declining numbers in our prison population.  We now have approximately 195,000 inmates in bureau or private contract facilities down from a high in 2013 of approximately 220,000.  This decline in the prison population means that we can better allocate our resources to ensure that inmates are in the safest facilities and receiving the best rehabilitative services – services that increase their chances of becoming contributing members of their communities when they return from prison.

Today, I sent a memo to the Acting Director of the Bureau of Prisons directing that, as each private prison contract reaches the end of its term, the bureau should either decline to renew that contract or substantially reduce its scope in a manner consistent with law and the overall decline of the bureau’s inmate population.  This is the first step in the process of reducing—and ultimately ending—our use of privately operated prisons.  While an unexpected need may arise in the future, the goal of the Justice Department is to ensure consistency in safety, security and rehabilitation services by operating its own prison facilities.

Today’s memo reflects important steps that the bureau has already taken to reduce our reliance on private prisons, including  a decision three weeks ago to end a private prison contract for approximately 1,200 beds.  Taken together, these steps will reduce the private prison population by more than half from its peak in 2013 and puts the Department of Justice on a path to ensure that all federal inmates are ultimately housed at bureau facilities.

Wednesday, August 17, 2016

OIP is pleased to announce the launch of a new page on its website dedicated to the work of the Chief FOIA Officer (CFO) Council. Recently established by the FOIA Improvement Act of 2016, the CFO Council is composed of all agency CFOs, plus the Deputy Director for Management from the Office of Management and Budget (OMB), and is co-chaired by the Directors of OIP and the Office of Government Information Services (OGIS). In fulfilling its responsibilities, the Council will meet regularly to develop recommendations for increasing FOIA compliance and efficiency, disseminating information about agency experiences and best practices, and working on initiatives that will increase transparency. Agencies and the public can access resources related to the work of the Council, including agendas and meeting minutes from past meetings as well as details on future meetings, on this dedicated page.    

As highlighted on FOIA Post, last month the CFO Council held its inaugural meeting on July 22, 2016 in an event held at the White House. A recording of that event, as well as the meeting minutes and presentation materials, is available on this new page. During this meeting, OIP Director Melanie Pustay introduced the first item for the Council's consideration -- implementing a "release to one, release to all" presumption for FOIA responses. To assist in the implementation of this new presumption, OIP asked agency CFOs to answer specific questions about how such a policy might work at their agency. The memorandum and questionnaire from OIP's Director to all agency CFOs seeking this feedback is also available on this new page. If you would like to submit your own feedback on the “release to one, release to all” presumption, please email ReleaseToAll@usdoj.gov with your thoughts.

Please be sure to continue checking FOIA Post and the new CFO Council Page for further updates on the Council's work and details about upcoming meetings.  

Topic(s):
FOIA, Open Government
Monday, August 15, 2016

Courtesy of Assistant Attorney General John C. Cruden for the Environment and Natural Resources Division and Assistant Attorney General Karol Mason for the Office of Justice Programs

“We feel safer if they are safe.”  This was a sentiment voiced during a recent roundtable discussion on Animal Welfare Enforcement that the Environment and Natural Resources Division (ENRD) and Office of Justice Programs hosted at the Justice Department.  This statement reflects a view that there is a link between certain types of animal cruelty and interpersonal abuse and that harm to animals also harms communities.  This concept is not new.  What is new and encouraging is the dialogue that it spurred among federal, state and local law enforcement leaders about how we can more effectively work together and learn from each other to combat animal cruelty.

We were joined by more than 100 leaders in the area, including representatives of federal agencies, states and local governments, as well as researchers, scientists and others in the animal welfare field.  And for the first time, we focused collectively on information sharing, organizational strategies and cooperation in animal welfare enforcement.

Unlike some of the traditional environmental and pollution-control statutes, which contain formal mechanisms for cooperative federalism, animal welfare law is dominated by a loose interplay of both mutually exclusive areas of enforcement and areas of co-extensive regulation.  At the federal level, laws like the Animal Fighting Venture Prohibition and the Animal Crush Video Statute prohibit extreme acts of violence and cruelty, while laws like the Animal Welfare Act, Horse Protection Act and Humane Slaughter Act, establish humane standards for common commercial activities.  But these federal laws represent only one facet of the legal system governing animal welfare in the United States. States and local governments have had a long history of regulating animal cruelty.  Today every state has its own animal cruelty laws.  These laws sometimes overlap with federal law, but many of them are broader and cover areas like animal neglect, hoarding, abuse and killing.  Criminal activity like animal fighting, where enforcement authority lies with multiple jurisdictions, presents an obvious need for cooperation and communication between authorities.  But the need does not end there.

Information Sharing

Assistant Attorney General John C. Cruden for the Environment and Natural Resources Division and Assistant Attorney General Karol Mason for the Office of Justice Programs participating in a roundtable.

The first topic of our roundtable emphasized the importance of and current challenges in, information sharing.  Many have described the link between animal cruelty and other crimes, such as domestic violence, gang activity and narcotics and gun trafficking.  Indeed, the department explored this issue in a 2013 gathering examining the intersection between animal cruelty and public safety.  But until very recently, we lacked a mechanism for consistently collecting and sharing information about animal cruelty crimes on a nationwide basis.  Beginning this year, however, through its National Incident-Based Reporting System (NIBRS), the FBI began collecting detailed data from participating law enforcement agencies across the country on acts of animal cruelty.  By including animal cruelty crimes as a distinct category in NIBRS, the department will get a better picture of animal cruelty crime across the country.  But the information that we collect is only as good as what gets reported to us.  So we need more jurisdictions to participate in NIBRS and report animal cruelty crimes. 

Organization

We also explored how different states and localities have organized themselves to more effectively address the unique challenges raised in this specialized field.  In 2015, for example, the Virginia Attorney General’s Office designated one of the first Animal Law Units in the nation, where a knowledgeable team of staff attorneys serve as a resource for local law enforcement and state agencies on animal welfare issues.  In Delaware, the state created the Office of Animal Welfare to consolidate and coordinate the companion animal programs in the state.  And earlier this year, the District Attorney’s Office in Queens County became the first in New York City to create an Animal Cruelty Prosecutions Unit.

Here at the Department of Justice, we have also recently examined our approach to animal welfare litigation, resulting in the designation of ENRD as the component responsible for coordinating judicial enforcement efforts and working on civil and criminal animal welfare cases along with the U.S. Attorneys’ Offices.  We recently charged and arrested nine individuals for their alleged involvement in a multi-district dogfighting conspiracy.  We also testified before the U.S. Sentencing Commission in support of increasing the recommended sentencing guidelines for those who perpetuate this blood sport.

Continued Cooperation

During our roundtable, we had a chance to hear law enforcement personnel share their stories on collaboration and partnership across state lines.  Representatives of the FBI’s Columbia, South Carolina, Violent Gang Task Force, which consists of agents of the FBI, Columbia Police Department, the Richland County Sheriff’s Office, the South Carolina Law Enforcement Division and the South Carolina National Guard, discussed their recent enforcement actions.

This joint federal-state task force model, where local police are deputized to work alongside federal officials, highlights one successful way multiple jurisdictions can tackle complex enforcement challenges together.  The task force was able to effectively take down a dogfighting operation through what began as a joint investigation of drug activity.  But building cooperative law enforcement relationships can take many other forms, whether it is sharing information about conduct which offends the laws of multiple governments – such as the creation and distribution of animal crush fetish videos – or making referrals in cases where a violation may be more appropriately addressed by a single jurisdiction, such as with inhumane handling of animals outside of a USDA-regulated facility.

Animals are a part of our community and the laws that are designed to keep them safe serve a number of purposes, including curbing violent behavior more generally.  By leading this dialogue among federal, state and local law enforcement, we can more effectively combat animal cruelty and improve public safety. 

Topic(s):
Environment
Friday, August 12, 2016

Courtesy of Principal Deputy Director Bea Hanson, Ph.D., Office on Violence Against Women

Recently, Attorney General Loretta E. Lynch, Secretary Sylvia Mathews Burwell of the U.S. Department of Health and Human Services (HHS) and Secretary Julián Castro of the U.S. Department of Housing and Urban Development (HUD) released a letter to recipients of federal funding to provide more information on access to services for immigrant victims. The letter explains that immigrants cannot be denied access to certain services necessary to protect life or safety on the basis of their immigration status.  

We know that immigrant survivors of violence need access to vital services and assistance so that they can successfully escape abuse, find safety, and start the healing process, as well as obtain assistance to pursue the special immigration remedies that Congress enacted through the Violence Against Women Act and the Trafficking Victims Protection Act.

The purpose of this letter is to clarify that service providers should not turn away immigrant victims, on the basis of their immigration status, from certain services necessary for life or safety – services such as emergency shelter; short-term housing assistance, including transitional housing; crisis counseling; and intervention programs.

The letter from the Attorney General and the Secretaries of HHS and HUD is not a new policy. It reiterates and consolidates the long-standing policies of all three Departments, reminding federal funding recipients that federal law restricting immigrant access to certain public benefits includes exceptions to protect life or safety.

Specifically, federal law does not restrict immigrant access to programs that (1) are necessary for the protection of life or safety; (2) deliver in-kind services at the community level; and (3) do not condition the provision of assistance, the amount of the assistance or the cost of assistance on an individual’s income or resources.  These programs must be made available to eligible persons without regard to citizenship, nationality or immigration status.

This tri-agency letter should resolve questions that recipients of federal funding may have about their ability to serve all victims with OVW funds.  I also hope that it will be a useful tool when working with community partners to ensure that all victims have access to services necessary to protect their lives or safety.

 

Wednesday, August 3, 2016

By Acting Pardon Attorney Robert A. Zauzmer

I am delighted that the President granted commutation of sentence today to 214 men and women who were serving excessively long federal sentences for narcotics offenses. As today’s action makes clear, this administration is committed to carrying out the priorities set forth under the Clemency Initiative, an enormous effort to correct sentences that would not be imposed today based on current sentencing laws and Department of Justice policies. This effort aligns with the department’s broader effort to ensure that limited federal resources are most appropriately used to prosecute and sanction those higher-level and violent offenders who pose a danger to our communities.

I speak for all staff members in the Office of the Pardon Attorney in expressing our pride in participating in this historic effort. With strong leadership from the President, White House Counsel W. Neil Eggleston, Deputy Attorney General Sally Q. Yates and their staffs, we are making significant progress under the Clemency Initiative. Further, we remain profoundly grateful for the tremendously valued input from the remarkable coalition of pro bono attorneys comprising Clemency Project 2014 who have submitted numerous applications for relief on behalf of inmates.  

Since I became the Acting Pardon Attorney on February 1, 2016, the office has implemented new procedures that allow for significantly greater efficiencies in reviewing the many thousands of petitions we have received, gaining the views of United States Attorneys and sentencing judges and communicating our views to the Deputy Attorney General and the White House to allow the President to make an informed decision regarding the petitions presented to him. These changes have worked and we are processing more petitions than ever before – without compromising our duty to carefully consider each petition and keep the public’s safety foremost in our recommendations.

With today’s announcement, in 2016 the President has commuted twice as many sentences as he did in all of 2015. And our work is not done. Our priority and our focus remain on processing petitions presented to us regarding drug cases, the only area in which law and practice have been considerably ameliorated in recent years. We also hope to review many of the several thousands of additional petitions that might not meet all of the criteria of the Clemency Initiative but could nevertheless satisfy traditional standards for executive commutation.

The men and women of the Office of the Pardon Attorney are proud to participate in this effort.  Personally, having served as a federal prosecutor for more than 26 years, I consider it an honor to participate in the department’s sentencing reform work, which fulfills the highest mission of the Department of Justice: not only to prosecute crime and incapacitate offenders but also to do justice.

Monday, August 1, 2016

Both President Obama and the Department of Justice have stressed the importance of agencies working “in a spirit of cooperation” with FOIA requesters. Since their introduction, agency FOIA Requester Service Centers and FOIA Public Liaisons serve as the voice of the agency and provide two channels for the public to use to interact with agencies during the FOIA request process. On August 15th, OIP, in conjunction with the Office of Government Information Services, will be hosting a specialized training event to assist agency personnel in carrying out their responsibilities in these important roles.

FOIA Requester Service Centers typically serve as the first contact at agencies for members of the public when they have questions or are seeking information about how the FOIA works or  the status of their requests. The individuals who make up these FOIA Requester Service Centers need to be prepared to discuss their agency's FOIA process and to provide specific details about any given request. In addition, agencies offer the assistance of FOIA Public Liaisons who are tasked by the statute to be supervisory agency officials with the responsibility for “assisting in reducing delays, increasing transparency and understanding of the status of requests, and assisting in the resolution of disputes.”

The FOIA Improvement Act of 2016 reinforced the important role played by FOIA Public Liaisons who, in conjunction with agency FOIA Requester Service Centers, provide an all-important human touch to FOIA administration. By engaging with requesters during the FOIA process and providing contacts to help answer questions or resolve issues that may arise, FOIA Requester Service Centers and FOIA Public Liaisons serve important roles in promoting understanding throughout the lifecycle of a FOIA request. 

We hope that you are able to join us for this training, the details of which are:

FOIA Public Liaison and FOIA Requester Service Center Training
Department of Justice Conference Center
145 N Street, NE
August 15, 2016 - 10am to 12pm

This training is open to all FOIA Public Liaisons and FOIA Requester Service Center personnel. Registration is required to attend this training and you will need a picture ID to enter the building.

If you are interested in attending, please e-mail your name and phone number to OIP’s Training Officer at DOJ.OIP.FOIA@usdoj.gov with the subject line “FOIA Public Liaison & FOIA Requester Service Center Training.” If you have any questions regarding this event, please contact OIP's Training Officer at (202) 514-3642.

For those individuals outside of the Washington, DC area who are unable to attend this training, we are planning a teleconference to review the presentation material in the coming weeks. If you are interested in being a part of this teleconference, please send an email to DOJ.OIP.FOIA@usdoj.gov with the subject line “FOIA Public Liaison& FOIA Requester Service Center Training – Teleconference.” 

Topic(s):
FOIA
Wednesday, July 27, 2016

Courtesy of Assistant Attorney General John Cruden for the Environment and Natural Resources Division

The Environment and Natural Resources Division (ENRD) actively promotes joint state-federal environmental enforcement, which underlies the whole nature of cooperative federalism, a concept central to the structure of our environmental laws.  By teaming up with state partners in both enforcement and defensive cases, we combine sovereigns, reduce costs and obtain more comprehensive results.  We also collaborate regularly with state officials on a wide variety of training opportunities.  What follows are but a few highlights of state-federal cooperation during the second quarter of 2016.

In late April, ENRD and the California Department of Toxic Substances Control announced that a group of 66 companies had agreed to clean up contaminated groundwater at the Omega Chemical Corporation Superfund Site in Whittier, California, which is across the street from a residential neighborhood and within one mile of several schools.  The site was a refrigerant and solvent recycling, reformulation and treatment facility that operated from about 1976 to 1991 and involved a number of parties.  The settlement requires the companies to spend an estimated $70 million to install wells and operate a groundwater treatment system that will clean up the underground water.  The defendants will also reimburse the Environmental Protection Agency and the California Department of Toxic Substances Control for their costs incurred in past cleanup actions at the site.  An additional 171 parties that have either sent waste to the site or operated in the area and contributed to the contamination also agreed to fund a portion of the work.  The drought in California has underscored the importance of protecting the groundwater resources by cleaning up the affected aquifer and this settlement will make excellent progress toward that goal, as well as put additional systems in place to monitor and evaluate the level of contamination, which will guide future work at the site.

On May 9, we partnered with the state of Minnesota to settle various claims arising from the Southern Minnesota Beet Sugar Cooperative’s violations of its wastewater discharge permit at its processing facility in Renville, Minnesota.  If approved by the court, the consent decree will require the defendant to pay a civil penalty of $1 million, to be split equally with the state, for its violations of the Clean Water Act.  It will also require the defendant to spend at least $5 million in additional actions addressing wastewater treatment plant performance and wastewater storage issues and pay nearly $50,000 in restitution to the state for the associated fish kill.

These cases help advance the ENRD priority of cooperative federalism in environmental enforcement, which is critical to fulfilling ENRD’s mission.  But our cooperation with states does not end with environmental enforcement; we also partnered with states in defensive cases during the most recent quarter.

For example, at the invitation of the state of Nevada, we participated as a party in a state court action challenging the Nevada State Engineer’s highly favorable decision to limit future groundwater withdrawals in the vicinity of Devil’s Hole National Monument and Ash Meadows National Wildlife Refuge.  The State Engineer’s decision was predicated, in part, on the need to protect federal reserved water rights in these areas.  The court ultimately upheld the State Engineer’s actions, which were supported by evidence presented by the National Park Service.

In another defensive case, ENRD partnered with the state of North Carolina to defend the jointly prepared environmental analysis of a proposed tollway near Charlotte, North Carolina, from a challenge under the National Environmental Policy Act (NEPA).  On June 9, the U.S. Court of Appeals for the Fourth Circuit affirmed the federal district court’s ruling that the agencies’ supplemental environmental analysis met NEPA’s requirements.  Counsel for the federal and state agencies prepared a joint brief in the appeal and shared time at oral argument. The Fourth Circuit issued a decision concluding that the district court’s reasoning was correct.

Finally, ENRD continues to develop and enhance relationships with our state counterparts by participating in several forums designed to share experiences and expertise.  For example, ENRD representatives gathered in May with state investigators and environmental enforcement attorneys from around the country at the annual meeting of the Regional Environmental Enforcement Associations.  In addition, key members of the division shared expertise at a meeting intended to foster cooperation between the U.S. Fish and Wildlife Service and state wildlife managers and taught wildlife criminal investigators representing seventeen states at a course presented by the Wildlife Investigators’ Covert Academy.

These opportunities further enhance our ability to achieve ENRD’s mission on behalf of the American people and I look forward to continuing partnerships with our state and local government counterparts.

Topic(s):
Environment
Wednesday, July 27, 2016

On July 22, 2016, the Chief FOIA Officers (CFO) Council, created by the FOIA Improvement Act of 2016, held its inaugural meeting at the Eisenhower Executive Office Building. The CFO Council is composed of all agency CFOs, plus the Deputy Director for Management from the Office of Management and Budget (OMB), and is co-chaired by the Directors of OIP and the Office of Government Information Services (OGIS).  Chief FOIA Officers and representatives from over 64 agencies attended, along with several members of the public. The meeting was available via livestream, and the full video recording is available here.      

OIP Director Melanie Ann Pustay, opened the meeting by providing an overview of the responsibilities of agency CFOs. Next, Andrew Mayock, the Deputy Director for Management of OMB, emphasized the Administration’s commitment to transparency and open government. Mr. Mayock described the recently-announced Cross-Agency Priority (CAP) Goal for FOIA that will be co-led by OMB, DOJ, and NARA to focus senior leadership attention and drive performance and accountability for improving FOIA administration, and to ensure that Federal departments and agencies are providing sufficient resources toward FOIA responsibilities. He explained that the CAP goal will be publicly posted on Performance.gov, and will have a detailed action plan, including specific metrics and milestones that will be used to gauge progress. Mr. Mayock explained that the initial focus of the CAP goal will be on implementing the FOIA Improvement Act of 2016.  

Acting Director of OGIS Nikki Gramian also gave opening remarks. She discussed the responsibilities of OGIS and summarized the first meeting of the second term of the FOIA Advisory Committee, which is composed of representatives from both agencies and the requester community. Ms. Gramian indicated that she anticipates the work of the CFO Council and the FOIA Advisory Committee will be complementary, and that she looks forward to keeping the CFO Council informed about the Advisory Committee’s activities. 

Director Pustay then introduced the Council’s first item for consideration – implementing a “release to one is release to all” presumption for FOIA responses. Director Pustay briefed the Council on OIP’s six-month pilot program conducted with seven volunteer Federal agencies that was designed to assess the viability of a policy that would direct agencies to proactively post online their FOIA responses. The President has directed the CFO Council to consider the lessons learned from the DOJ pilot program and to work to develop a Federal Government policy establishing a “release to one is a release to all” presumptive standard for Federal agencies when releasing records under FOIA. After briefing the Council on the pilot and OIP’s findings, Director Pustay answered questions from the members on a wide range of issues connected with implementation of the policy.  

In the coming months, the CFO Council will examine issues critical to this policy’s implementation, including assessing the impact on investigative journalism efforts, as well as how best to address technological and resource challenges. At its next meeting, the Council will invite journalists and members of the public to provide feedback about the “release to all” policy, specifically addressing the concerns raised by some journalists about its possible impact on their work.  Details about the next meeting will be available here on FOIA Post.

Topic(s):
FOIA, Open Government
Tuesday, July 26, 2016

Courtesy of Vanita Gupta, head of the Justice Department’s Civil Rights Division

Twenty six years ago today, when President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law, he called it “powerful in its simplicity” and explained, “It will ensure that people with disabilities are given the basic guarantees for which they have worked so long and so hard: independence, freedom of choice, control of their lives, the opportunity to blend fully and equally into the rich mosaic of the American mainstream.”

For more than two decades, the Department of Justice has worked tirelessly to enforce the ADA, ensuring that people with disabilities can live their lives with the autonomy, opportunity and dignity they deserve.  Around the country, through litigation, technical assistance, guidance and regulatory work, we protect the rights of people with disabilities to vote, live, work and learn in their own communities, free from discrimination.

Today, Zavier no longer earns $1.70 per hour assembling small company parts.  Instead, with employment support, he works at a local YMCA, helping kids complete their homework and resolve their conflicts.  The agreement the department and private plaintiffs reached with Oregon last year will impact 7,000 Oregonians with disabilities – Oregonians, like Zavier, who can and want to work in typical community employment settings.

Xavier, who now works a local YMCAJayla and her family, who will soon be able to access and enjoy the local playgroundJoe, who can make online mortgage payments on Wells Fargo’s website and not have to pay a $25 service fee over the phone

Today, because of reforms mandated by a 2015 Justice Department agreement in Robeson County, North Carolina, Jayla and other children in wheelchairs will soon get the chance to access their local playgrounds, to enjoy their childhood and to play with their siblings and friends, just as all kids deserve.

Today, because of a settlement agreement the department reached with Augusta County, Virginia, last year, voters with mobility or vision impairments can access their polling places, so they can participate in our democracy without facing unlawful, unnecessary barriers to the ballot box.  To build on this work, last year we launched a new ADA Voting Initiative – in partnership with our U.S. Attorney colleagues – to ensure that people with disabilities get an equal opportunity to participate in the voting process, including in the 2016 presidential elections.  And just last month, we also published technical assistance on polling place accessibility for voters with disabilities.

And today, in part because of our efforts, Joe, who is blind, can make online mortgage payments on Wells Fargo’s website and not have to pay a $25 service fee over the phone.  Under the settlement agreement the department reached with Wells Fargo in 2011, people with disabilities – including those who are blind and deaf – won’t face unlawful discrimination when trying to pay their bills.
 
These stories represent just a sample of our success.  Despite our impactful efforts over the past 26 years, we recognize that there are many unaddressed challenges and unresolved barriers in our communities.  These barriers don’t just hurt people with disabilities; they impact all of us.  Helping people with disabilities live meaningful, enjoyable and productive lives enables our country to reach its full potential.  So we must forge on until growing up with a disability in America no longer leads to discrimination; until we, as a nation, recognize the dignity and value of every person without question and until – to quote President Bush’s powerful words at the ADA signing ceremony – “the shameful wall of exclusion finally come[s] tumbling down.”  
Topic(s):
Civil Rights
Friday, July 22, 2016

The inaugural meeting of the newly established Chief FOIA Officers Council will be held on July 22, 2016. President Obama recently signed into law the FOIA Improvement Act of 2016, which, among other things, established a Chief FOIA Officer Council. The Chief FOIA Officer Council is co-chaired by the Directors of OIP and OGIS and is made up of each agency Chief FOIA Officer and the Deputy Director of Management of OMB. In accordance with the new law, the Council is tasked with developing recommendations for improving FOIA, sharing best practices, and developing and coordinating initiatives.

The meeting will be held at 2:00pm on July 22, 2016 in Room 430 of the Eisenhower Executive Office Building; 1650 Pennsylvania Avenue NW, Washington, DC 20502

You can view a livestream of this meeting at www.wh.gov/live beginning at 2pm. You can also follow the meeting through OIP's Twitter account @FOIAPost and through the hashtag #CFOCouncil.

A limited number of seats are available for members of the public to attend in person. For security purposes registration is required. Please email DOJ.OIP.FOIA@usdoj.gov with the subject line “CFO Council Meeting – Public” by COB on July 18, 2016 to request a seat. On July 19, we will respond to your email to confirm your attendance and provide a link for you to formally register by July 21 at 12pm.  

Topic(s):
FOIA, Open Government
Friday, July 22, 2016

Courtesy of Vanita Gupta, head of the Justice Department’s Civil Rights Division

In a meeting with community leaders at the White House this morning, the Justice Department issued its final report from “Combating Religious Discrimination Today,” an interagency community engagement initiative we launched in March to promote religious freedom, challenge religious discrimination and enhance enforcement of religion-based hate crimes.

Across the federal government, we believe that robust and proactive enforcement of our civil rights laws requires meaningful and substantial engagement with communities.  From March through June – in collaboration with our outstanding U.S. Attorney colleagues and federal agency partners – we held seven roundtables in six cities to learn firsthand about religious discrimination in our communities and to solicit feedback from faith leaders, civil rights advocates and community members about how we in the federal government can address these issues.

 Government officials and community members discussed issues related to religious discrimination in employment at a roundtable held in Birmingham, Alabama, on April 20, 2016. 

The report we released today provides an overview of what we found.  It addresses the overarching themes – in terms of the challenges highlighted, the trends identified and the proposals shared – across four key issue areas where we know religious discrimination continues to be a significant problem: education, hate crimes, employment and land use.

In education, we heard that while we need to recognize the constitutional limitations on teaching about religion in schools, we also need to make sure that students learn about diverse religious communities.  In employment, we heard that both employers and employees – including people of various faiths and people who identify as non-religious – lack awareness about how our civil rights laws provide faith-based protections in the workplace.  To combat hate violence, we heard that as houses of worship face an uptick in attacks, communities need more resources and support to keep their congregants safe.  And in land use, we heard how municipalities simply don’t know enough about the Religious Land Use and Institutionalized Persons Act (RLUIPA) and how it applies, especially in situations where it conflicts with state or local laws.

Across all of these areas, we heard people from different backgrounds and perspectives say that the federal government – through outreach, guidance and communication – needs to do more to make the protections of our laws a reality for all.  Of course, we didn’t just organize these roundtables to hear about problems.  We also wanted to craft solutions.

Back in March, I joined U.S. Attorney Paul Fishman of the District of New Jersey in announcing a new enforcement initiative where the Civil Rights Division will partner with U.S. Attorneys’ Offices across the country to strengthen our ability to address religious discrimination in schools.  Today the division is updating its website to ensure communities know about our work to combat hate violence and enforce laws such as the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act.  And today we also published an update on our RLUIPA enforcement in a new report that highlights some critical trends.  To note just one key finding, from 2000–2010, 15 percent of our land use investigations involved Muslim communities; during the past six years, 38 percent of them have.  We continue to take steps to educate municipal leaders about their obligations under RLUIPA and we look forward to announcing more resources across all these areas in the coming months.

Beyond the policy ideas, at every single roundtable we also saw firsthand another critical tool to protecting religious diversity and combating religious discrimination – dialogue: dialogue that brings people out of their corners and helps drive real reform.  Imagine that kind of dialogue taking place beyond the roundtables, in cities and towns across America.  Imagine people from different walks of life; different faiths and different backgrounds taking the time to understand each other, to hear one another out – with dignity, decency and respect.

We hope that this initiative and report can help continue to spur that kind of rich and robust dialogue.  As we discussed this morning, today doesn’t mark the end of our work on this initiative.  Fulfilling the promise of our founding ideals doesn’t happen in one month or one year.  It requires ongoing effort and impactful solutions in the always demanding, ever-evolving work of building safe, vibrant and inclusive communities around the country.

Tuesday, July 19, 2016

On Aug. 3 and 4, 2016, in Beijing, senior administration officials and top U.S. judges will meet with Chinese counterparts to discuss judicial reform.  This new high-level U.S.-China Judicial Dialogue: In Support of Economic Growth and Reform was announced during President Obama and President Xi’s meeting in September 2015.  The dialogue will be led by Principal Deputy Associate Attorney General Bill Baer and Department of Commerce General Counsel Kelly Welsh for the U.S. side, and by CPC Central Leading Group for Judicial Reform Vice Chairman Jiang Wei and Supreme People’s Court Vice President Tao Kaiyuan for the Chinese side.  Both sides will include leading jurists as speakers.  The U.S. delegation includes Chief Judge Diane Wood of the U.S. Court of Appeals for the Seventh Circuit, U.S. District Judge Leonie Brinkema of the Eastern District of Virginia and U.S. District Judge Lucy Koh of the Northern District of California. 

The goal of the U.S.-China Judicial Dialogue: In Support of Economic Growth and Reform is to support and exchange views on judicial reform, and to identify and evaluate the challenges and strategies in implementing the rule of law.  President Obama and Chinese President Xi agreed that the dialogue should lead to an improvement in the transparency and predictability of the business environment.  In this first meeting of the dialogue, the two sides will discuss case management, alternative dispute resolution, precedent, amicus briefs and evidence in civil and commercial cases. 

Monday, July 18, 2016

On June 30, 2016, President Obama signed into law the FOIA Improvement Act of 2016, which contains several substantive and procedural amendments to the FOIA. OIP has prepared a summary of the amendments as well as a redlined version of the statute which shows the changes made by the amendments. Today, OIP has released its first guidance piece addressing the new amendments. The guidance addresses the new requirements for agency response letters and for notices extending the FOIA's time limits due to "unusual circumstances." The guidance addresses the:

  • Requirement to notify requesters about the availability of the agency's FOIA Public Liaison to offer assistance,
  • Requirements to notify requesters of their right to seek dispute resolution services from the Office of Government Information Services (OGIS) at NARA, and
  • To afford the requester no less than 90 days from the date of the adverse determination on the request to file an administrative appeal.

Agencies should update their response letters and notices extending the FOIA’s time limits due to unusual circumstances to include the new requirements from the FOIA Improvement Act of 2016. OIP has prepared an implementation checklist, with sample language, to assist agencies in doing so.

 

Guidance on the New Requirements for FOIA Response Letters, Including Affording Ninety Days to File an Administrative Appeal, and New Notification Requirement for Notices Extending FOIA’s Time Limits Due to Unusual Circumstances

Topic(s):
FOIA, Open Government
Friday, July 15, 2016

In January 2016, as part of the administration’s ongoing efforts to combat gun violence, President Obama directed the Departments of Justice (DOJ), Homeland Security (DHS) and Defense (DOD) to develop a research and development strategy to expedite real-world deployment of advanced gun safety technology.  In April 2016, the three agencies submitted a report to the president that outlined a multi-pronged plan to expand and encourage the development of “smart gun” technology.  Among other things, the report described a four-step process whereby DOJ and DHS would develop baseline specifications that defined, for the first time, the minimum technical requirements that law enforcement agencies expect from smart guns.  Step one of the process called for the National Institute of Justice (NIJ) – DOJ’s research, development and evaluation agency – to assemble a team of firearms experts at DOJ and DHS that would prepare a draft list of baseline specifications by July 15, 2016.  NIJ has now completed this step of the process. 

Today, NIJ is issuing for public comment a draft version of these baseline specifications.  NIJ is soliciting input on the document from a broad range of stakeholders—from academics to advocates; engineers to entrepreneurs.  In addition to seeking public comment, NIJ is hosting a two-day convening of federal, state and local law enforcement agencies in mid-August to review and discuss the draft specifications.  Based on this feedback, DOJ and DHS will revise the specifications as appropriate and finalize the document for publication. 

These voluntary baseline specifications are designed to provide clear guidance to private industry so that manufacturers can develop technology that meets the needs of law enforcement officers, particularly with regards to reliability, durability and accuracy.  As the April 2016 report makes clear, this process is designed to spur the development of new technology, not to mandate that any particular individual or law enforcement agency adopt the technology once it is developed.  By establishing clear technical and engineering standards, this process is designed to ensure that any smart gun technology available to law enforcement agencies is safe and reliable.  Moreover, by engaging law enforcement experts and a broad range of stakeholders throughout this process, NIJ hopes to produce a final document that both reflects the exacting demands of law enforcement officers and advances the president’s goal of expediting the real-world deployment of smart gun technology. 

Thursday, July 14, 2016

Update: This post has been updated to reflect that this event is at capacity.

OIP will be hosting a training session on the FOIA Improvement Act of 2016 on August 8, 2016.  The training will provide agency personnel with an overview of the recent amendments to the FOIA and an opportunity to ask questions to OIP’s Director about the new provisions.  As OIP continues to work on guidance to agencies on the implementation of the specific requirements of the new law, we hope you can join us for this training to address any immediate questions or concerns. The details for this training are:

FOIA Amendments Training
Robert F. Kennedy Building - Great Hall
10th and Constitution Ave NW
August 8, 2016 - 10am to 12pm
 

This training event is open to agency FOIA professionals and interested agency personnel.

If you are interested in attending, please e-mail your name and phone number to OIP’s Training Officer at DOJ.OIP.FOIA@usdoj.gov with the subject line “FOIA Amendments Training.” As space for this meeting is limited, registration is required to attend.  You will need a picture ID to enter the building.  If you have any questions regarding this event, please contact OIP's Training Officer at (202) 514-3642.

Topic(s):
FOIA, Open Government
Wednesday, July 6, 2016

Courtesy of Attorney General Loretta E. Lynch and Director of the White House Domestic Policy Council Cecilia Muñoz

Cross-posted on Huffington Post.

Attorney General Lynch and the Federal Interagency Reentry CouncilAs law enforcement agencies and community organizations team up across the country to reduce crime, expand opportunity and revitalize our neighborhoods, it is increasingly clear that a crucial part of that work is helping people returning from our prisons and jails make a successful transition back to their families and communities.  With more than 600,000 individuals leaving state and federal prisons each year and more than 11 million cycling through local jails, reentry is a process with enormous implications for communities across the United States and for all of us who care about making sure that we create opportunity for everyone who is able to contribute.  If handled the right way, reentry policy can lead to lower crime, stronger families and more prosperous communities.  If handled poorly – or if ignored altogether – a failure to ensure successful reentry can deepen the cycles of poverty, criminality and incarceration that prevent too many of our neighborhoods from reaching their full potential.

This administration has been dedicated to improving reentry outcomes since President Obama took office in 2009.  In the years since, the White House, the Department of Justice and agencies across the federal government have worked tirelessly to strengthen our reentry infrastructure in a number of ways.  For example, the president’s criminal justice reform agenda includes a number of reentry initiatives, some of which were highlighted in the department’s National Reentry Week in April.  And the Departments of Justice and Labor are funding innovative projects that support hundreds of adult and youth reentry programs across the country.

To build on these efforts, President Obama recently signed a memorandum formally establishing the Federal Interagency Reentry Council, which we are proud to chair together.  The president’s action officially charters an effort that started in January of 2011, when former Attorney General Eric Holder convened federal agency heads to address reentry in a more comprehensive fashion.  The distance we have come in those five-and-a-half years is remarkable.  We have opened doors to employment for returning citizens by launching the White House Fair Chance Business Pledge, an effort aimed at eliminating barriers to reentry and employment, including “ban the box” initiatives that delay questions about criminal history until an appropriate point in the hiring process.  We have expanded access to educational opportunities through programs like Second Chance Pell, which makes some federal inmates eligible for college funding.  And we are working to reduce the thousands of secondary consequences triggered by a criminal record – from trouble getting student loans to barriers to voting – restrictions that too often penalize those who have been in prison long after they have served their sentences.

Today, we held the first meeting of the newly-chartered Reentry Council, and we took even more promising steps forward.  Led by the council’s Executive Director Amy Solomon, we discussed a number of recent accomplishments, evaluated ongoing activities and discussed a promising way forward.  The White House gave an overview of the Fair Chance Business Pledge and the Higher Education Pledge, which enlists private-sector organizations and colleges and universities in providing individuals a fair chance to participate in the American economy.  The Office of Personnel Management discussed how their new proposed rule will “ban the box” for federal hires, delaying inquiries about an applicant’s criminal history until a conditional offer is made.  The Department of Education described its Beyond the Box initiative to give justice-involved individuals access to postsecondary educational opportunities.  The Department of Health and Human Services highlighted new guidance that extends Medicaid coverage to residents of community halfway houses, which will help as many as 100,000 people.  And the Department of Justice showcased the Bureau of Prisons’ Roadmap to Reentry, a strategic blueprint for reentry planning in the federal prison system released in the spring.  The department also highlighted new rules soon to be published in the Federal Register that will give people who are incarcerated, often victims of crime and trauma themselves, access to federally-funded victim services. 

In his memorandum, President Obama wrote that “America is a nation of second chances.”  But for too many Americans involved with the justice system, those second chances never appear.  That’s a status quo we cannot afford to accept.  It is too damaging to those leaving prison; too harmful to the families and communities to which they’re returning; and too costly to the nation, which depends upon the skills and talents of all its people.  With the creation of the Federal Interagency Reentry Council, and the help of our dedicated partners throughout the United States, we’re beginning to change that status quo, to create more second chances and to build a brighter future for all.

Friday, July 1, 2016

Yesterday the Justice Department published updated guidance on the accessibility of polling places under the Americans with Disabilities Act (ADA).  The publication, “ADA Checklist for Polling Places,” aims to help state and local government election officials, poll workers and voters better understand the basic accessibility features necessary to allow voters with mobility and vision disabilities to access their polling place.

The Justice Department’s Civil Rights Division works vigorously to protect the right of all eligible voters to participate in our democracy.  Unfortunately, exclusions and barriers to the ballot box, including inaccessible polling places, still exist for voters with disabilities.  In 2008, GAO  reported that across the United States, only 27% of polling places were accessible to voters with disabilities during the presidential election.  The revised ADA Checklist for Polling Places provides helpful guidance to election officials so they can improve polling place accessibility and provide voters with disabilities the same opportunities as other voters to cast their ballots at polling places, alongside their neighbors and friends.

Title II of the ADA requires state and local governments to ensure that people with disabilities have a full and equal opportunity to vote.  With respect to polling places, counties and cities are required to select and use polling places that are physically accessible to people with a variety of disabilities, such as those who use wheelchairs, scooters or other devices; those who have difficulty walking or using stairs; or those who are blind or have vision loss.

In 2010, the department published revised ADA regulations, including the Standards for Accessible Design.  The ADA Checklist for Polling Places incorporates these changes.  The checklist includes a discussion on polling place accessibility with a focus on those areas of a facility that may be used as a polling place on election day; a list of tools, helpful tips and temporary remedies for making polling places accessible; and a revised checklist formatted as a stand-alone survey document that may be used by election officials to assess the accessibility of their polling places.

The updated checklist is a component of the department’s efforts to secure equal voting rights for people with disabilities.  Last year, the Civil Rights Division, partnering with U.S. Attorneys’ Offices across the nation, launched the ADA Voting Initiative to ensure that people with disabilities have an equal opportunity to participate in the voting process, including in this year’s presidential elections.  The ADA Voting Initiative covers all aspects of voting, from voter registration to casting ballots at neighborhood polling places.  U.S. Attorneys’ Offices may investigate the physical accessibility of local polling places, review state and local voting policies and procedures impacting voters with disabilities and assess whether actions taken by officials and others deny voters with disabilities the full and equal exercise of their voting rights.

The Civil Rights Division has published additional technical assistance publications about federal laws that protect the rights of voters with disabilities, including the Americans with Disabilities Act, the Voting Rights Act, the National Voter Registration Act and the Help America Vote Act.  The publication, “The Americans with Disabilities Act and Other Federal Laws Protecting the Rights of Voters with Disabilities,” is intended to help election officials, poll workers and voters understand how the ADA and other federal laws ensure equality in the voting process for people with disabilities.  A second document, “Solutions for Five Common ADA Access Problems at Polling Places,” discusses physical barriers to access to voters with disabilities in five commonly found areas at polling places and offers solutions for addressing them.

To view the ADA Checklist for Polling Places, visit https://www.ada.gov/votingchecklist.htm.

To learn more about the ADA and other laws protecting the rights of voters with disabilities, visit www.ada.gov/ta-pubs-pg2.htm.  Those interested in finding out more about the ADA can call the Justice Department’s toll-free ADA Information Line at (800) 514-0301 or (800) 514-0383 (TDD), or access the ADA website at www.ada.gov

Topic(s):
Civil Rights
Thursday, June 30, 2016

This Fourth of July marks the 50th anniversary of the signing of the Freedom of Information Act (FOIA), which as President Obama declared, "is the most prominent expression of a profound national commitment to ensuring an open Government." In July 2015, OIP launched a pilot program with the participation of seven agency volunteers to assess the feasibility of a policy that would entail not only releasing FOIA processed records to one requester, but to the public at large by having the agency  post them online. Today, and in celebration of the FOIA’s 50th anniversary, OIP is pleased to release its report on this pilot along with its analysis and next steps.

In his 2009 FOIA Memorandum, President Obama directed agencies to take affirmative steps to make information available to the public. Likewise, the Department of Justice in its 2009 FOIA Guidelines stressed the importance of proactive disclosures and has encouraged agencies to engage in an ongoing effort to identify records of interest to the public and to post them online. The pilot sought to answer many important questions on the feasibility of a “release to one/release to all” policy, including the:

  • costs associated with such a policy,
  • effect on staff time for those who process requests,
  • effect on interactions with government stakeholders, and the
  • justification for any exceptions to such a policy, such as for personal privacy.

The agencies that participated in the pilot are the Office of the Director of National Intelligence, the Millennium Challenge Corporation, the Environmental Protection Agency, and components or offices of the Departments of Defense, Homeland Security and Justice, and the National Archives and Records Administration. Throughout the pilot, OIP collected metrics, provided guidance, and answered questions from the participating agencies and solicited feedback from the public. All of the information collected from agencies and received from the public has been incorporated into the assessment.

Analyzing the pilot results revealed that a broad implementation of the “release to one/release to all” policy will require the active participation of a range of offices within each agency. Not only will FOIA offices need to be engaged in this process but, more significantly, the Web teams or IT offices who provide the technical assistance in preparing documents for posting will need to develop workflows and plans to accommodate the increased volume of postings that would occur as a result of implementation. Additionally, time and financial resources may need to be reallocated. Given these factors, the engagement of agency Chief FOIA Officers is critical to expanding the “release to one/release to all” policy more broadly across the government.

As a result of the FOIA Improvement Act of 2016, Chief FOIA Officers will serve on a newly-created Chief FOIA Officers Council. The Department of Justice will present the results of its "release to one/release to all" pilot as the first item for the new Council to consider and will seek the assistance of the Council in determining the best way forward. 

Alongside these efforts, OIP will continue to engage with agencies on the implementation of this policy. OIP will also continue to ask agencies to include in their Chief FOIA Officer Reports details about their efforts regarding proactive disclosures in general and “release to one/release to all” efforts in particular. All agencies are encouraged to use the results of this pilot as a guide while the Chief FOIA Officers Council begins its work, and we encourage everyone to review OIP’s full report on this pilot.

Topic(s):
FOIA, Open Government
Thursday, June 30, 2016

Yesterday, the Department of Justice submitted a written statement for the record to the Senate Veteran’s Affairs Committee’s Hearing on Pending Servicemembers and Veterans Legislation.  The statement supports the proposed amendments to the Uniformed Services Employment and Reemployment Act of 1994 (USERRA), which aim to clarify the procedural rights of members of the uniformed services and improve the enforcement of such employment and reemployment rights.

Since 2004, when the department took on responsibility for litigating USERRA cases, the department has vigorously enforced USERRA.  In this time period, the department has filed 95 USERRA lawsuits and favorably resolved 151 USERRA complaints on behalf of the nation’s servicemembers and veterans.  Importantly, the department provides legal assistance for those servicemembers who may not be able to find or afford private attorneys to take up their cause, giving a voice to the concerns of servicemembers and veterans that might not otherwise be heard.

Proposed amendments to USERRA include:

  • allowing the Unites States to serve as plaintiff in all suits filed by the Attorney General, and not just in suits filed against state employers;
  • providing the department with pattern-or-practice authority to enforce USERRA by granting independent authority to the Attorney General to investigate and file suit to challenge a pattern-or-practice in hiring that violates USERRA;
  • explicitly revoking state sovereign immunity so that servicemembers are able to bring a USERRA action against a state employer in either state or federal court;
  • revising pension contribution calculations so that a servicemember’s pension contribution is comparable to the average contribution of similarly-situated employees;
  • adding compensatory and punitive damages so as to better compensate servicemembers for losses suffered  due to USERRA violations;
  • providing for civil investigative authority in USERRA investigations;
  • detailing disabilities discovered after a servicemember resumes work for purposes of reemployment determinations; and
  • clarifying that servicemembers are not bound by arbitration agreements that are entered into prior to their service obligations.

The department believes that these amendments to USERRA would provide us with critical enhanced enforcement capabilities and buttress current servicemember protections.

Topic(s):
Servicemembers Initiative
Thursday, June 30, 2016

Courtesy of Principal Deputy Director Bea Hanson of the Office on Violence Against Women

The Office on Violence Against Women (OVW) was thrilled to participate in the United State of Women Summit on June 14, 2016. Over 5,000 people traveled to Washington, D.C., from all across the country and around the world; many thousands more attended via livestream, which you can watch on the Summit’s website. The White House Council on Women and Girls coordinated the event to both celebrate the progress that’s been made over the past seven and a half years and to galvanize action for the work that still lies ahead.

“Together we are all stronger” was a theme woven throughout the Summit, which was built on six pillars: violence against women and girls; health and wellness; economic empowerment; entrepreneurship and innovation; educational opportunity; and leadership and civic engagement.

President Obama addressed the Summit and expressed his optimism that tomorrow’s leaders will encourage a society that treats women with respect: “…So our girls see that they, too, are America -- confident and courageous and, in the words of Audre Lord, ‘deliberate and afraid of nothing.’”

During the Summit, various breakouts, referred to as “Solutions Seminars,” focused on violence against women issues. I had an opportunity to moderate one of these breakouts, entitled “From the Margins to the Center: Solutions to Stopping Violence in All Communities,” which was livestreamed nationally and can be viewed on the Watch the Summit (at 4:15:17). We had a very powerful discussion with courageous women who highlighted the increasing need for interventions addressing domestic and sexual violence to be led by and for diverse communities. Our panel discussed how this could be done through culturally based and innovative approaches that build on the strengths and resilience of their communities. The insights and activism of all the participants also demonstrated how our collective national response to gender violence can better address violence against all women and girls.

In preparation for the Summit, the White House Council on Women and Girls compiled a factsheet highlighting many significant accomplishments during the past seven and a half years, across many different federal agencies, to advance the Administration’s goal of ending violence against women and girls. This document is truly a testament to the tremendous hard work and dedication of advocates and stakeholders. And yet, as we all know, there is still so much more work to be done.

As part of the Summit, OVW, the Office for Victims of Crime (OVC), and the Department of Health and Human Services’ Family Violence Prevention and Services Program (FVPSA) cohosted a performance of Mary Kathryn Nagle’s (Cherokee Nation of Oklahoma) play “Sliver of a Full Moon,” which is a powerful reenactment of the historic congressional reauthorization of the Violence Against Women Act (VAWA) in 2013.  The play also highlights the efforts of tribal advocates and leaders from across the country to restore the authority of tribal governments to prosecute non-Native abusers who assault and abuse Native women on tribal lands. The performance was presented in partnership with the National Congress of American Indians and the National Indigenous Women’s Resource Center.

OVW, OVC, and FVPSA also cohosted a post-Summit event at George Washington University entitled “Reimagining, Reinvigorating and Moving Forward to End Sexual Assault, Domestic violence, Dating Violence and Stalking.” Leaders from national, state, tribal, and local domestic violence, sexual assault, dating violence, and stalking organizations facilitated discussions for more than 400 participants on promising practices, innovative approaches, and the needs of survivors in marginalized and underserved communities. Topics included improving the criminal justice response to violence against women, as well as exploring alternative pathways to safety and healing, enhancing the role of health care providers in prevention and intervention efforts, improving access to shelter and housing, economic justice, tribal sovereignty, youth and children in the civil courts, youth leadership, and technology. This event also featured a “White House Arm Chair Discussion” with both the current and former White House Advisor on Violence Against Women, and we look forward to sharing a summary report of this convening in the months ahead.

OVW also released some new reports and funding announcements in conjunction with the Summit, including the following:

  1. Twenty Years of the Violence Against Women Act: Dispatches from the Field. This report summarizes the themes from the national tour of OVW grant recipients in which OVW staff visited 50 locations in 20 states—rural, urban, suburban, and tribal – and conducted listening sessions. The report summarizes those conversations, highlighting accomplishments and the lasting influence of VAWA on communities’ ability to respond to sexual assault, domestic violence, dating violence, and stalking, as well as identifying barriers and gaps in services.

  2. Awards to Reduce Domestic Violence Homicides. OVW announced new investments of more than $3.2 million to reduce domestic violence homicides due to firearms. The awards will be used for enhanced training and technical assistance, demonstration programs, and the establishment of a National Resource Center on Domestic Violence and Firearms.

  3. Demonstration Programs to Provide Stable Housing to Victims of Domestic Violence Living with HIV/AIDS. OVW and the Department of Housing and Urban Development’s Office on HIV-AIDS Housing announced grant awards of more than $9 million to support eight local programs across the country to provide housing assistance and supportive services to low-income persons living with HIV/AIDS who are victims of sexual assault, domestic violence, dating violence, or stalking.

  4. Additionally, the Office of Juvenile Justice and Delinquency Prevention’s (OJJDP) National Girls Initiative published a report, “Unintended Consequence: Addressing the Impact of Domestic Violence Mandatory and Pro-Arrest Policies and Practices on Girls and Young Women.” This report was based on a roundtable that OJJDP and OVW had convened earlier this year, in conjunction with the National Girls Initiative, in which they brought together a group of advocates representing the violence against women and the juvenile justice reform for girls communities to discuss the unintended consequences of domestic violence mandatory and pro-arrest policies on girls and young women, as well as the disproportionate impact on communities of color.

As First Lady Michele Obama noted during the Summit, “the work always continues.  And by that I mean we’re never done.” But, we know that, together, we are all stronger and have the ability to make incredible and long-lasting change to bring safety and justice to all women and girls. 

Join the United State of Women and pledge to do your part so that today we can all change tomorrow. Here is the pledge:

I WILL:

Be in charge of my own body. Every powerful part.

Learn whatever I want like it's nobody's business.

Stand by my game-changing ideas.

Use my voice to stand up for my community.

Get paid the same as everyone else doing the same job.

Call out sexism when I see it.

Not be a silent bystander.

Thursday, June 30, 2016

Today, as we approach the 50th anniversary of the Freedom of Information Act, President Obama has signed into law the FOIA Improvement Act of 2016.

In our democracy, the FOIA serves as a vital tool to keep citizens informed about the operations of their government. Since its enactment in 1966, the FOIA has been amended on a number of occasions to adapt to the times and changing priorities.  The FOIA Improvement Act of 2016 contains several substantive and procedural amendments to the FOIA, as well as new reporting requirements for agencies.  

In order to assist agencies in understanding all of the new changes to the FOIA, OIP has added two new resources to its website today. First, agencies and the public can find a detailed summary of all of the changes to the law on the "FOIA Resources" pages of our site. Additionally, OIP is making available a redline version of the FOIA which outlines each of the changes within the law. 

In the upcoming months, OIP will be issuing guidance to agencies on the implementation of the various new provisions of the law.  Announcements will be made on FOIA Post as new guidance is released. Agencies are encouraged to contact OIP's FOIA Counselor Service with any questions they may have on implementation of these new statutory provisions.  

Topic(s):
FOIA, Open Government
Wednesday, June 22, 2016

Blog post courtesy of Acting Associate Attorney General William J. Baer

Many consumers received some good news yesterday when e-book retailers such as Amazon and Barnes & Noble reached out to notify them of significant credits being added to their accounts.  The source of these credits was a payment by Apple Inc. of $400 million to reimburse e-book purchasers for the higher prices they paid for e-books during the time in which a price-fixing conspiracy between Apple and five e-book publishers was in force.  Purchasers of New York Times bestsellers are being provided a $6.93 credit for each title they bought.  Purchasers of other titles are receiving $1.57 for each e-book.  Consumers can apply these credits to future purchases.

Apple’s obligation to make these payments arose from conduct that the Justice Department’s Antitrust Division challenged in a civil antitrust lawsuit it filed in April 2012.  The Antitrust Division alleged, and ultimately proved at trial, that Apple knowingly orchestrated a price-fixing conspiracy among five large book publishers that led to substantial increases in the prices readers were required to pay for e-books.  As Judge Denise Cote of the U.S. District Court for the Southern District of New York found:

The Plaintiffs have shown through compelling evidence that Apple violated Section 1 of the Sherman Act by conspiring with the Publisher Defendants to eliminate retail price competition and to raise e-book prices.  There is overwhelming evidence that the Publisher Defendants joined with each other in a horizontal price-fixing conspiracy.  Through that conspiracy, the Publisher Defendants raised the prices of many of their New Releases and NYT Bestsellers above the $9.99 price at which they had previously been sold through Amazon.  They also raised the prices of many of their backlist e-books.  The Plaintiffs have also shown that Apple was a knowing and active member of that conspiracy.  Apple not only willingly joined the conspiracy, but also forcefully facilitated it.

United States v. Apple, Inc., 952 F. Supp. 2d 638, 691 (S.D.N.Y. 2013).  The U.S. Court of Appeals for the Second Circuit affirmed Judge Cote’s decision a year ago.  United States v. Apple., Inc., 791 F.3d 290 (2d Cir. 2015).

On March 7, 2016, the U.S. Supreme Court denied Apple’s petition for certiorari and made final the lower court decisions in the case.  The Supreme Court’s action triggered Apple’s obligation to pay $400 million to e-book purchasers under Apple’s July 2014 agreement to settle damages actions brought by the attorneys general of 33 states and territories and a private class of e-book purchasers.  With the $166 million previously paid by the conspiring publishers to settle claims against them, Apple’s payment brings to $566 million the amount repaid to e-book purchasers overcharged as a result of Apple’s and the publishers’ illegal conspiracy.

The final judgment entered by Judge Cote also took steps to meet the court’s goal of “ensur[ing] that the government need never again expend its resources to bring Apple into court for violations of the country’s antitrust laws.”  In her final judgment, Judge Cote appointed an external compliance monitor to work with Apple to improve its antitrust compliance and training programs.  The monitor worked with Apple for two years, overcame efforts on Apple’s part to discredit him and impede his work and, in the end, ensured that Apple implemented significantly strengthened policies, procedures and training that we hope will prevent a recurrence of the activities that led to this case.  Apple will also face further compliance and reporting obligations for the judgment’s two remaining years.

The terrific outcome achieved in this case shows how our antitrust laws work to protect consumers against antitrust conspiracies and how the Antitrust Division will pursue antitrust enforcement actions where warranted against even the most powerful companies in the world.  The Antitrust Division and 33 state attorneys general worked together to expose the unlawful conduct, negotiate consent decrees with the book publishers, establish Apple’s liability at trial and defend that result on appeal.  The states and private plaintiffs used those outcomes to secure damages for the many consumers injured by the conspiracy.

Topic(s):
Antitrust, Consumer Protection

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