FOIA News: 50th anniversary of 1974 FOIA Amendments

1974 FOIA Amendments Mark Golden Anniversary

By NARA-OGIS, FOIA Ombuds, Nov. 21, 2024

Requesters, the next time you work to “reasonably describe” records in a FOIA request or visit FOIA.gov for agency FOIA data, you can thank the 1974 FOIA amendments. And agency FOIA professionals, you can thank the 1974 FOIA amendments for setting timeframes for agency action on FOIA requests and establishing the one-time 10-working-day extension for “unusual circumstances.” 

The week of November 18-22, 2024 marks the 50th anniversary of the amendments, passed by Congress eight years after it passed the original law. The amendments require agencies to publish indices of agency information; established the U.S. District Court in D.C. as a universal venue for FOIA lawsuits; and gave federal judges the power to review classified documents in private to determine whether the records were properly classified.

Read more here.

Court opinions issued Nov. 20, 2024

Smartflash LLC v. USPTO (D.D.C.) — granting the agency’s summary judgment motion and upholding its application of Exemption 5 and the deliberative-process privilege to six emails concerning the Patent Trial and Appeal Board’s use of “expanded panels”; concluding the communications at issue were pre-decisional and deliberative since they reflected “communications by subordinate employees . . . discussing how to interpret and respond to a prior FOIA request,” and contained “preliminary impressions, analysis, questions, and recommendations”; holding further that the agency conducted an adequate segregability review and demonstrate foreseeable harm in potential “chilling effect” on the FOIA office’s processing of requests; finally, rejecting the requester’s waiver arguments based on either adoption or public disclosure as unwarranted.

Informed Consent Action Network v. FDA (D.D.C) — granting, in part, the agency’s Open America stay motion; noting, among other things, how “FDA received two court orders [in the past three years] that together compelled it to produce approximately 5.7 million pages of COVID-19 vaccine records within a highly compressed timeframe,” and that these production orders have negatively impacted the processing of other requests; rejecting the agency’s proposal for an eighteen-month stay, and instead staying the case for eight months.

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

FOIA News: DOJ-OIP releases its Standard Operating Procedures

Last month, the Department of Justice’s Office of Information Policy released its Standard Operating Procedures in response to a FOIA request from GovermentAttic.org. The 83-page production consists of two parts: 15 pages pertaining to administrative appeals and a 68-page “Compliance Team Handbook.”

Of interest, OIP employees are instructed to not use gender pronouns or “Mr.” ”Mrs.” or Ms.” in appeal response letters. Neutral titles such as “Dr.” or “Esq.” are acceptable. For DOJ’s “Sunshine Week” event, a compliance team attorney drafts the OIP Director’s remarks. We appreciate that component heads can get busy, but OIP co-founder Dan Metcalfe must be rolling in his grave. Regarding the “DOJ Guide to the FOIA,” the Handbook states that “[t]here is a rotating, 2-year schedule for regular chapter updates. The goal is to implement more regular and recent changes in case law, owing to increased FOIA litigation.” We can’t help but note that of the 25 Guide chapters, only five have been updated since November 2022. We further note that OIP’s “2-year” schedule should be a “two-year” schedule, according to most style guides (including OIP’s house guide).

FOIA News: FOIA under Trump

What will a second Trump term mean for the Freedom of Information Act?

The law itself is likely to stand, but experts expect a surge in requests, longer delays, and more court dates.

By Andrew Deck Nieman Lab, Nov. 20, 2024

During the first Trump administration, one law arguably played an outsized role in fueling accountability reporting on the federal government. The Freedom of Information Act, or FOIA, has long been a cornerstone of investigative journalism in the U.S. Documents obtained through FOIA requests underpinned countless marquee investigative stories during Trump’s first term.

As bleak forecasts circulate about how the new administration might impact the lives and work of journalists in the U.S., I was curious to learn how the climate around government transparency and FOIA compliance might change. Is FOIA on solid footing as Trump heads back to the White House or could it be undercut by legislation — or, more discreetly, chipped away at, agency by agency?

Read more here.

Court opinion issued Nov. 19, 2024

Gov’t Accountability & Oversight v. SEC (D.D.C.) — denying requester’s motion for fees after concluding that the requester was not eligible; rejecting the requester’s reliance on the “catalyst theory,” and instead determining that the agency persuasively explained how it had already started processing by the time the lawsuit was filed; concluding further that any “delay was not due to a lack of cooperation, but rather was the result of an email fluke that caused GAO’s FOIA requests to be marked as spam,” and that the agency’s decision to reprocess and release previously withheld portions of records was not compelled by any aspect of the litigation process.

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

Court opinion issued Nov. 12, 2024

Org. for Competitive Mkts. v. USDA-OIG (D.D.C.) — granting summary judgment in favor of the defendant agency and intervenor National Cattlemen’s Beef Association more than 4 1/2 years after briefing ended; holding, first, that USDA-OIG conducted an adequate search, despite the requester not challenging its sufficency; similarly entering judgment in favor of the agency vis-a-vis its use of Exemptions 7(C) and 7(C), despite no opposition from the requester; upholding the agency’s use of Exemption 6, in light of the requester’s abandoned arguments; ruling that the agency properly invoked Exemption 4 to withhold information concerning “Beef Checkoff Contractors” and “Qualified State Beef Councils” assuch information (e.g., “financial reports, accounting ledgers, budgets, and vendor contact information) was “generally treated as private by the owner of the records”; rejecting the requester’s arguments that an assurance of privacy is a “necessary condition” for withholding; ruling further that the agency properly invoked Exemption 5 and the deliberative-process privilege to protect draft audit reports and audit-related communications, and rejecting the requester’s appeal to the “government misconduct exception”; finally, concluding that the agency conducted an adequate segregability review.

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

Jobs, jobs, jobs: Weekly report Nov. 18, 2024

Federal positions closing in the next 10 days

Gov’t Info. Specialist, Dep’t of Health & Human Serv./CMS, GS 13, Woodlawn, MD, closes 11/18/24 (non-public).

Gov’t Info. Specialist, Fed. Deposit Ins. Corp., CG 12, multiple locations, closes 11/18/24 (internal to agency).

Gov’t Info. Specialist, Dep’t of Labor/OSHA, GS 9, Birmingham, AL Region, closes 11/18/24 (public).

Gov’t Info. Specialist, Dep’t of the Air Force, GS 11-12, Quantico, VA, closes 11/19/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Manchester, NH, closes 11/20/24 (non-public).

Attorney Advisor, Dep’t of Transportation/PHMSA, GS 14, Wash., DC, closes 11/25/14 (public).

Gov’t Info. Specialist, U.S. Int’l Trade Comm’n, GS 12-13, Wash., D.C., closes 11/25/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Providence, RI, closes 11/25/24 (non-public).

Sup. Gov’t Info. Specialist, Dep’t of the Treasury/OFAC, GS 15, Wash., D.C., closes 11/26/24 (public).

Sup. Gov’t Info. Specialist, Dep’t of the Treasury/OFAC, GS 15, Wash., D.C., closes 11/26/24 (non-public).

Gov’t Info. Specialist, Dep’t of Health & Human Serv./HRSA, GS 13, Rockville, MD, closes 11/26/24 (non-public).

Federal positions closing on or after Nov. 29, 2024

Gov’t Info. Specialist, Dep’t of the Army, NH 3, Redstone Arsenal, AL, closes 11/29/24 (non-public).

Gov’t Info. Specialist, Dep’t of Justice/OJP, GS 12-13, Wash., DC., closes 12/6/24 (public)

FOIA News: More on flood of requests targeting agency employees

Inside the conservative hunt for partisans in the federal government before Trump takes over

By Steve Contorno, CNN, Nov. 16, 2024

In mid-September, as tech billionaire Elon Musk intensified his efforts to elect Donald Trump as president, a wave of letters arrived at the Department of Transportation, asking the agency to turn over any emails and text messages that federal workers sent about the world’s wealthiest man and his sprawling technology empire.

The requests were like thousands of others sent in the past two years by Trump-allied groups seeking to identify perceived partisans within the federal government. Some have focused on diversity, equity and inclusion programs, others on employees who shared “off the record” information with reporters and on emails referencing “climate change.”

It’s a massive fishing expedition that has already sent a chill through federal agencies bracing for Trump’s second term.

With Trump set to return to the White House with a promise to shrink the federal government and eliminate civil servants seen as obstacles to his agenda, the groundwork laid by these groups could serve as a road map for a mass purging of personnel.

Read more here.

FOIA News: Theodore Olson & FOIA

The late, great lawyer Ted Olson, who died at age 84 on November 13, 2024, is perhaps best known for his blockbuster U.S. Supreme Court wins in Bush v. Gore, which ended the 2000 presidential election, and Citizens United v. Federal Election Commission, a 2010 case that eliminated many limits on political donations. We cannot help but note that Mr. Olson also participated in two high-profile Freedom of Information Act matters. While serving as Solicitor General, the the government prevailed in National Archives and Records Administration v. Favish, a landmark 2004 U.S. Supreme Court decision recognizing the concept of “survivor privacy” under Exemption 7(C). And while in private practice, Mr. Olson represented Citizens United in its 2015 lawsuit against the State Department seeking access to Hilary Clinton’s emails.

Read more about Mr. Olson here.

FOIA News: A toothless take on FOIA

Abolish FOIA

FOIA has no teeth and bureaucrats abuse its exemptions. Just redact and release every federal workers' emails instead.

By C.J. Ciaramella, Reason, Dec. 2024

Over the past decade I've submitted hundreds of records requests to federal agencies through the Freedom of Information Act (FOIA). I've written extensively about the law, taught college students how to file requests, and evangelized the importance of having a statutory right to inspect public records.

I love FOIA. And I hate it. The federal FOIA law is broken and should be replaced with something better.

FOIA requests can take years to fulfill, unless you can afford to hire a lawyer and file a lawsuit. Agency FOIA officers routinely abuse exemptions to hide records. The process is difficult even for experienced reporters to use for newsgathering.

Read more here.