FOIA News: FOIA Advisory Committee to meet on Dec. 5th

The federal FOIA Advisory Committee will hold its third meeting of the 2024-2026 term on December 5, 2024, according to a Federal Register notice issued today by the Office of Government Information Services. The meeting will be virtual and is open to the public. Meeting materials will be posted here.

Jobs, jobs, jobs: Weekly report Nov. 4, 2024

Federal positions closing in the next 10 days

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Salt Lake City, UT, closes 11/4/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Salt Lake City, UT, closes 11/4/24.

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Albany, NY, closes 11/4/24 (agency only).

Gov’t Info. Specialist, Dep’t of the Army, GS 12, Stuttgart, Germany, closes 11/5/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Air Force, GS 9, McConnell AFB, KS, closes 11/5/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs, GS 12, Beckley, WV, closes 11/6/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Treasury/IRS, GS 7-11, nationwide locations, closes 11/7/24 (non-public).

Sup. Program Analyst, Dep’t of Def./DHA, GS 14, Falls Church, VA, closes 11/7/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Interior/NIGC, GG 12, remote, closes 11/8/24.

Gov’t Info. Specialist, Dep’t of Education, GS 12-13, Wash., DC, closes 11/12/24 (non-public).

Lead Gov’t Info. Specialist, Dep’t of Transportation/FHA, GS 14, closes 11/13/24 (non-public).

Federal positions closing on or after Nov. 15, 2024

Gov’t Info. Specialist, Dep’t of the Treasury/IRS, GS 12, multiple locations, closes 11/15/24 (non-public)

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

FOIA News: DC Circuit to hear argument in Glomar case

On Monday, November 4, 2024, the U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument in Project for Privacy & Surveillance Accountability, Inc. v. Department of Justice (No. 22-5303).

PPSA seeks records from six agencies about the possible surveillance of 48 Members of Congress who serve or served on intelligence oversight committees. Those agencies have refused to confirm or deny the existence of responsive records, however, and a lower court ruled that the government’s Glomar responses were appropriate.

Livestream audio will be available here.

Monthly roundup: October 2024

Below is a summary of the notable FOIA court decisions and news from last month, as well as a look ahead to FOIA events in November.

Court decisions

We identified and posted 10 decisions in October, a sizeable decrease from the 38 decisions issued in September. A pair of rulings denying preliminary injunctions sought by Heritage Foundation might have brought smiles to agency FOIA professionals deluged by requests from the conservative organization’s so-called “oversight” project. See Heritage Found. v. Dep’t of State (D.D.C. Oct. 29, 2024); Howell v. DHS (D.D.C. Oct. 25. 2024) (remarking that Heritage’s “premature attempt to return to this Court with a highly similar request borders on the vexatious”).

Top News

On October 15, 2024, OIP released its assessment and summary of agency Chief FOIA Officer Reports for FY 2024.

ProPublica reported on October 1, 2024, that the Heritage Foundation was flooding federal agencies with FOIA requests “in an apparent attempt to find employees a potential Trump administration would want to purge.”

November calendar

November 4, 2023: D.C. Circuit argument in Proj. for Privacy & Surveillance Accountability v. DOJ

November 6, 2024: Introduction to the Freedom of Information Act Training (federal employees)

November 7, 2024: Chief FOIA Officers Meeting

November 12, 2024: Deadline for agencies to submit Fiscal Year 2024 Annual FOIA Report to OIP

November 13, 2024: Litigation Seminar (federal employees)

Court opinions issued Oct. 29-31, 2024

Oct. 31, 2024

Leopold. v. Def. Intelligence Agency (D.D.C.) — in a case involving the redaction of two email messages responsive to a request concerning Michael’s Flynn’s tenure at DIA and as a subject to Special Counsel Mueller’s investigation, denying each party’s motion for summary judgment; holding that the technical requirements for use of Exemption 5 and the deliberative-process privilege were satisfied; yet concluding the DIA’s foreseeable harm analysis was inadequate because the agency did not adequately explain how disclosure would interrupt or chill internal deliberations over official travel decisions; noting how the Court “is hesitant” to order the documents produced, given the potential “impact [on] foreign relations with one this country’s closest allies,” and thus providing DIA with the opportunity to file a supplemental declaration concurrent with in camera review of the email records at issue.

Oct. 29, 2024

Am. First Legal Found. v. FBI (D.D.C.) — granting the government’s motion for summary judgment in a case concerning records of the FBI’s background investigations into DHS Secretary Alejandro Mayorkas; holding, firstly, that the agency’s search was adequate given the detailed nature of the FBI’s “61-page affidavit” and, in so doing, rejecting the requester’s contention that the FBI was required to search email accounts when email correspondence was not specified in the request; relatedly concluding that the agency had not improperly narrowed the timeframe of its search; holding, further, that the FBI properly withheld records on a categorical basis under Exemptions 6 and 7(C), and that the requester offered only “bare suspicion” of why disclosure would serve the public interest by, among other things, demonstrating legal or ethical violations on the part of Secretary Mayorkas or other government officials; finally, holding that the FBI demonstrated compliance with the FOIA’s segregability requirement.

Heritage Found. v. Dep’t of State (D.D.C.) — denying the requesters’ motion for a preliminary injunction requiring expedited processing and completed disclosure of non-exempt records “by October 25, 2024” in a case involving records related to Ukrainian President Volodymyr Zelensky’s visit to an American munitions plant; holding that the requesters “have not established that the records they seek are so central or highly relevant to the electoral choice voters will make . . . or essential to the integrity of the election, that a preliminary injunction is needed to avoid irreparable harm”; holding further that the requesters otherwise “cannot rely only on a statutory entitlement to expedited processing to show [the] irreparable harm” required for preliminary injunctive relief.

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

Court opinions issued Oct. 25, 2024

Sherven v. CIA (W.D. Wis.) — granting the CIA’s motion for summary judgment in a case brought by a pro se requester for records about himself; holding that the agency properly refused to search for records responsive to several items of the request on grounds that responsive records, if they existed, would be exempt under Exemptions 1 and 3; noting that, while “[t]he CIA could have been more specific in its explanation,” “[c]ourts must defer to agencies on issues of national security”; declining to conduct in camera review because, in a searchless Glomar case, that would require the agency to actually “confirm that there are responsive documents.”

Howell v. DHS (D.D.C.) — denying plaintiffs’ motion for a preliminary injunction requiring expedited disclosure of communications between Vice President Harris and Customs & Border Protection related to the “southwest border or illegal immigration”; holding that the “Plaintiffs fall far short of a preliminary injunction’s high bar,” are “unlikely to succeed on the merits,” “failed to exhaust FOIA administrative processes” by failing to respond at the outset to DHS’s request for clarification, and anyway “advance dubious claims of irreparable harm and the public interest”; elaborating that “the Court will not compel DHS to prioritize Plaintiffs’ vague, noncompliant request above the 125,000 FOIA requests in its backlog, or even the smaller number of cases in its expedited processing queue,” particularly since “Plaintiffs have already successfully sought information about the issue they claim is now so urgent, and their premature attempt to return to this Court with a highly similar request borders on the vexatious.”

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

FOIA News: Feds flooded with requests for controversial emails

Conservative outfits are scouring feds’ emails

Right-leaning groups have filed tens of thousands of information requests as Donald Trump plans a scorched-earth reign over civil servants.

By Robin Bravender, E&E News, Oct. 30, 2024

As former President Donald Trump vows to “shatter the deep state” and make it easier to fire “rogue bureaucrats,” some of his former aides and conservative think tanks have been collecting federal officials’ internal emails.

The expansive records requests — including some that target career civil servants’ communications — are causing concern among government employees and their allies who fear that an incoming Trump administration might try to use the information they obtain to purge career workers from the federal government.

Read more here.

FOIA News: DOJ soliciting nominations for FOIA awards

OIP Now Accepting Nominations for the 2025 Sunshine Week FOIA Awards

By DOJ/OIP, FOIA Post, Oct. 30, 2024

The Department of Justice, Office of Information Policy (OIP) is pleased to announce that nominations are open for the 2025 Sunshine Week FOIA Awards, recognizing the contributions of FOIA professionals from around the government.  Each year, the number of nominations submitted to OIP to recognize the exceptional achievements of federal FOIA employees grows.  As such, OIP is opening the nomination window earlier this year than in previous years to allow more time for review of submissions.

Read more here.

FOIA News: Another FOIA discussion on Nov. 1st

On November 1, 2024, the Yale Law School will host a panel discussion entitled “Algorithmic Sunshine,” which will consider “how some cutting-edge technologies can make transparency and accountability more efficient and effective.” Speakers include Abdi Aidid (Yale), Adam Marshall (Reporters Committee of Freedom of the Press), Michael Morisy (MuckRock), Bobak Talebian (Department of Justice, Office of Information Policy), and Ariana Tobin (Pro Publica). The discussion is part of the law school’s two-day Access & Accountability 2024 conference.

We previously reported that George Washington University’s law school will host a day-long FOIA program on November 1, 2024, to mark the 50th anniversary of the 1974 FOIA amendments.

FOIA News: Contractors’ demographic data requested

Federal Contractor EEO-1 Demographic Data Set to be Released Again

By Evan Szarenski & Joanna Colosimo, DCI Consulting, Oct. 28, 2024

Tomorrow, October 29, 2024, the Office of Federal Contract Compliance Programs (OFCCP) is scheduled to publish a Notice in the Federal Register regarding two Freedom of Information Act (FOIA) requests for 2021 Type 2 Consolidated Employer Information Reports (EEO-1 Reports) filed by federal contractors.​ The requests were made by the University of Utah and a non-profit organization named "As You Sow."​  

OFCCP believes the requested information may be protected under FOIA Exemption 4, which covers confidential commercial information, but has not yet made a determination. 

​The notice informs federal contractors who filed these reports in 2021 that they have 40 days from the publication date of the Notice to submit objections to the disclosure of their information.​  

Read more here.