Monthly roundup: April 2024

Below is our roundup of FOIA court decisions and FOIA news from April 2024, as well as a peek ahead to events in May.

Court decisions:

We posted 8 decisions in April, the least active month of the year by far. Of note, in Campaign for Accountability v. DOJ (D.D.C.), the court held that the Office of Legal Counsel’s “formal, written opinions resolving interagency disputes” are subject to FOIA’s reading room provision, 5 U.S.C. § 552(a)(2)(A) because such opinions are “final opinions . . . made in the adjudications of cases.” In reaching its decision, the court rejected the government’s argument that because OLC opinions may not resolve questions of agency policy, they were not “final” opinions for purposes of section 552(a)(2)(A).

In our March roundup, we jumped the gun and omitted a meaningful decision that was issued on Sunday, March 31st, namely Citizens for Responsibility & Ethics in Wash. v. DOJ (D.D.C.). On remand from the D.C. Circuit, the court concluded, in part, that the names of federal contractors who supplied the Federal Bureau of Prisons with pentobarbital qualified as commercial information under Exemption 4 because disclosure would reveal that “the contractors have sold a product and/or service to the government, thereby ‘actually reveal[ing] basic commercial operations” of the contractors.’”

Top news:

Following a hectic March, which included “Sunshine Week,” April was more sluggish. The Chief FOIA Officers Council met for the first time this year on April 17, 2024, and discussed, among other topics, the U.S. Open Government National Action Plan, highlights of FY 2023 Annual Reports, and GAO’s report on FOIA backlogs.

May events:

May 7, 2024: DOJ course, Procedural Requirements, and Fee and Fee Waivers Training

May 9, 2024: Federal FOIA Advisory Committee meeting

May 14-15, 2024: NexGen FOIA Tech Showcase 2.0

May 21, 2024: DOJ course, Litigation Training

May 23, 2024: DOJ course, Administrative Appeals, FOIA Compliance, and Customer Service Training

Court opinion issued Apr. 29, 2024

Heritage Found. v. DOJ (D.D.C.) -- in case concerning various communications about Timothy Thibault, a former Assistant Special Agent in Charge of the FBI’s Washington Field Office, determining that: (1) DOJ properly relied on Exemptions 6 and 7(C) in refusing to confirm or deny the existence of records compiled for law enforcement purposes, but not for administrative records that plaintiff’s request conceivably sought; and (2) DOJ properly withheld—on a categorical basis—records of communications containing the terms “Thibault” and “Grassley” pursuant to Exemptions 6 and 7(C), except as to any responsive administrative records.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

FOIA News: FEC to amend its FOIA regulations

The Federal Election Commission will amend its FOIA regulations to conform with the FOIA Improvement Act of 2016, according an interim final rule scheduled to be published in the Federal Register on May 2, 2024. Comments will be due within 30 days of the rule’s publication.

FOIA News: Law journal article explores Exemption 3

Last week, the law journal of the St. Mary’s University School of Law published an article entitled Foiled FOIA: The Excessive Exemption, which examines how courts have treated Exemption 3 in the wake of the OPEN FOIA Act of 2009. In sum, the author concludes that the 2009 amendment to Exemption 3 requiring specific reference to the Act was “needless” and should be repealed.

Court opinions issued Apr. 26, 2024

Accuracy in Media v. DOD (D.D.C.) -- holding that FBI properly relied on Exemption 7(A) to categorically withhold certain FBI interview reports and corresponding handwritten notes of interviews conducted with American personnel who were present during the 2012 Benghazi attacks.

Henderson Parks v. Fed. Bureau of Prisons (N.D. Ill.) -- finding that BOP properly withheld certain records pertaining to the death of plaintiff’s former client while imprisoned pursuant to Exemptions 5, 7(C), (7(E), and 7(F); denying plaintiff’s request for in camera review and for “attorney’s eyes-only” access to withheld records.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

Jobs, jobs, jobs: Weekly report 4/29/24

Federal positions closing in the next 10 days

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Birmingham, AL, closes 5/1/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Air Force, GS 9, Goodfellow AFB, TX, closes 5/2/24 (non-public).

Student Trainee, Dep’t of State, GS 5, Charleston, SC, closes 5/3/24 or first 50 applications.

Gov’t Info. Specialist, Dep’t of Homeland Sec./Coast Guard, GS 13-14, Washington, DC, closes 5/6/24 (non-public).

Gov’t Info. Specialist, Dep’t of Homeland Sec./Coast Guard, GS 11-13, Washington, DC, closes 5/6/24 (non-public).

Gov’t Info. Specialist, Dep’t of Homeland Sec./Coast Guard, GS 9-12, Washington, DC, closes 5/6/24 (non-public).

Gov’t Info. Specialist, Dep’t of Def./DIA, GS 13, College Park, MD, closes 5/7/24.

Gov’t Info. Specialist, Envtl. Prot. Agency, GS 13, Philadelphia, PA, closes 5/9/24 (non-public).

Court opinion issued Apr. 23, 2024

Juul Labs v. FDA (D.D.C.) -- in case concerning agency’s denial of market approval for plaintiff’s e-cigarette products, concluding that: (1) agency properly relied on Exemption 5’s deliberative process privilege to withhold certain review memos drafted by agency scientists, as well as one “Technical Project Lead” review memo, but ordering FDA to review records submitted in camera that appeared to contain “purely descriptive” material; and (2) FDA established that disclosure would cause foreseeable harm by confusing the public and chilling agency deliberations.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

FOIA News: Media requests to FDA and SEC portend news stories

Journalists Signal Upcoming Story Lines with FOIA Requests

FOIAengine: Insights From the Latest FDA and SEC Requests 

By Randy Miller, Law Street, Apr. 24, 2024

News media outlets are among the most prolific submitters of FOIA requests to federal agencies. These requests signal – in real time – the stories that journalists are researching and writing. To illustrate this point, we’re summarizing highlights of the hundreds of FOIA requests submitted by media organizations to the Food and Drug Administration and the Securities and Exchange Commission during March (the most recent month for which information is available). 

News Media FOIA Requests to the FDA

Members of the news media submitted 97 FOIA requests to the FDA last month, addressing a range of hot-button issues, including FDA review of Alzheimer’s drugs lecanemab and donanemab; the existence of counterfeit weight loss drugs; information about pharmacies in Pennsylvania providing mifepristone; pharmaceutical manufacturing facilities in India; the use of remdesivir for the treatment of Covid-19; and the Wanabana recall of lead-tainted pouches of apple puree and applesauce. See our March 13 article on Wanabana.

Read more here.

FOIA News: Toss FOIA suit of litigious ex-lawyer, argues Patent Office

Feds Want Disbarred Atty's FOIA Suit Over USPTO Docs Axed

By Dorothy Atkins, Law360, Apr. 24, 2024

The federal government urged a North Carolina federal court Wednesday to toss a disbarred attorney's sprawling Freedom of Information Act lawsuit over U.S. Patent and Trademark Office documents, arguing the case is one of a dozen duplicative, meritless suits the plaintiff has filed.

The motion asked U.S. District Judge James C. Dever III to dismiss Richard Polidi's latest pro se lawsuit for lack of jurisdiction, or alternatively for failure to state a viable claim.

In a footnote, the government said the lawsuit is one of 12 that Polidi, who was disbarred a decade ago over paying a client in a personal injury lawsuit, has filed "in contravention of judicial admonishment to stop filing 'meritless and repetitive claims in the [district] related to his disbarment.'"

Polidi filed the suit in September and amended it in February after the government filed its original motion to dismiss.

Read more here (accessible with free trial).

FOIA News: OIP announces upcoming NexGen 2.0 FOIA Tech Showcase

The Department of Justice’s Office of Information Policy has announced that a three-day virtual “NexGen 2.0 FOIA Tech Showcase” will be held next month. Full details, reproduced below, can be found at OIP’s blog.

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Register Now for NexGen 2.0 FOIA Tech Showcase for Federal Agencies

Dep’t of Justice, OIP Blog (Apr. 23, 2024)

The Office of Information Policy (OIP) is pleased to announce that the Technology Committee of the Chief FOIA Officers (CFO) Council, in conjunction with OIP and the Office of Government Information Services (OGIS), will host a three-day event for federal agencies called the NexGen 2.0 FOIA Tech Showcase on May 14-16, 2024.    

The Showcase is intended to identify FOIA technology solutions for federal agencies in response to existing FOIA case processing and backlog challenges, as well as raise awareness of existing technological capabilities utilizing artificial intelligence and other advanced technologies.  A variety of vendors will provide video demonstrations of their technology products for use in agency FOIA administration.  Agency Q&A with the vendor will follow each demonstration. 

This event is open to federal agency employees with a .gov or .mil email address only.  Registration is required on Eventbrite.  All attendees must register by 11:59 PM EDT on Sunday, May 12, 2024.  Links to each day’s event will be sent to all registered attendees on Monday, May 13th.  Additional details about the Chief FOIA Officers Council and the meeting, including the agenda, will be available on the Chief FOIA Officers Council Technology Committee website on FOIA.gov.