Monthly roundup: August 2024

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

Court decisions:

We identified and posted 29 decisions issued in August, nearly twice as many as last month (15) and the highest monthly total of the year to date. Of note, in Shapiro v. Dep’t of Justice (D.D.C. Aug. 1, 2024), the FBI failed to persuade the court that 14 unprocessed tabs in its “Freedom of Information and Privacy Act Document Processing System” were either not agency records, required the agency to create new records, or were too burdensome to produce. The government fared better in a pair of decisions issued by the Southern District of New York involving the same parties. In Reclaim the Records v. U.S. Dep't of State (S.D.N.Y. Aug. 7, 2024), the court held that the State Department performed an adequate search for an index or list of vital records of residents of the Panama Canal Zone, and that because of the limited capabilities of the agency’s computer system, fulfilling plaintiff’s request would entail extraordinary effort and creating new records. Less than three weeks later, a different judge reached a similar conclusion regarding plaintiff’s request for an index of reports concerning death of U.S. citizens abroad. See Reclaim the Records v. U.S. Dep't of State (S.D.N.Y. Aug. 26, 2024).

Top News:

On August 15, 2024, the National Archives and Records Administration announced the newest members of the federal FOIA Advisory Committee for the 2024-2026 term, which kicks off next week (see calendar below).

On August 21, 2024, DOJ’s Office of Information Policy announced the dates of its virtual training for government employees and contractors for fiscal year 2025.

September calendar:

Sept. 5, 2024: D.C. Circuit oral argument in America First Legal Foundation v. USDA, No. 23-5173.

Sept. 9, 2024 (10am-1pm): The first meeting of the federal FOIA Advisory Committee for the 2024-2026 term.

Sept. 9, 2024 (1pm-2:15pm): The law firm Covington will discuss how various aspects of FOIA interact with government contracting. The course will primarily focus on federal FOIA law, but there will also be discussion of state FOIA laws.

Sept. 13, 2024: The second meeting of the federal FOIA Advisory Committee for the 2024-2026 term.

Sept. 30, 2024: Last day of fiscal year 2024. FOIA employees rejoice at close of business.

Monthly roundup: July 2024

Below we summarize the notable FOIA court decisions and news from last month, as well as a peek ahead to events in August.

Court decisions:

We identified and posted 15 decisions issued in July, the highest total since the month of March. The government fared well in at the appellate level with two affirmances in the D.C. Circuit—Cabezas v. FBI and Kowal v. DOJ—and one in the Eighth Circuit, Fogg v. IRS. All were fairly routine, however.

In the district courts, Judge McFadden of the D.D.C was faced with an interesting issue in Children’s Health Def. v. CDC, specifically whether executive departments are automatically parties when their components are sued. Based on “text and precedent,” he ruled that they did not.

News:

Congressman Adam Schiff introduced a bill on July 23, 2024, that would extend FOIA to the federal judiciary. FOIA Advisor criticized the bill in a commentary.

The Office of Government Information Services held its annual open meeting on July 24, 2024.

On July 18, 2024, the Office of Information Policy announced that it had added law enforcement records to its FOIA.gov search tool.

Lookahead to August

At some point in August, OGIS is likely to announce the new members of the FOIA Advisory Committee for the 2024-2026 term, whose first public meeting is September 9, 2024.

Aug. 15, 2024: Judge Carl Nichols of the U.S. District Court for the District of Columbia will hold a Motion Hearing in New Civil Liberties Alliance v. SEC, No. 22-cv-3567. The D.C. Circuit will not hear any matters in August.

Aug. 16, 2024: 30 business days before the end of fiscal year 2024. FOIA requests received on or after this date that involve “unusual circumstances” will not be considered backlogged in FY 2024 if unfulfilled.

Aug. 30, 2024: 20 business days before the end of FY 2024. Any FOIA requests received on or after this date will not be considered backlogged in FY 2024 if unfulfilled.

Monthly roundup: June 2024

Below is our summary of FOIA court decisions and news from last month, as well as a peek ahead to events in July.

Court decisions:

We identified and posted 7 decisions in June, none of which were remarkable. In Nat’l Sec. Archive v. CIA, the D.C. Circuit affirmed the CIA’s withholding of a memo concerning a 1983 nuclear crisis with the Soviet Union even though the State Department previously published a version of the memo with the CIA’s blessing.

Top news:

• On June 7, 2024, the Office of Information Privacy issued a summary of agency annual reports for fiscal year 2023. Of note, agencies received and processed more than 1.1 million requests, backlogged requests remained above 200k, and total FOIA costs rose 20 percent.

• The 2022-2024 term of the federal FOIA Advisory Committee wrapped up its work on June 13, 2024, approving a final report and 16 recommendations for the Archivist of the United States.

• The IRS took a little heat for directing its FOIA requesters to use “ID.me,” which requires identity verification.

Lookahead to July

July 4, 2024: 58th anniversary of FOIA’s enactment. See legislative history here.

July 9, 2024: DOJ/OIP Privacy Considerations Training.

July 11, 2024: DOJ/OIP Continuing FOIA Education Training.

July 15, 2024: Deadline for nominations for the 2024-2026 term of the federal FOIA Advisory Committee.

July 25, 2024: OGIS annual open meeting.

July 26, 2024: Deadline for agencies to post Quarter 3 FOIA data.

Monthly roundup: May 2024

Below is our summary of FOIA court decisions and news from last month, as well as a peek ahead to events in June.

Court decisions:

We posted 10 decisions in May, a slight uptick from the eight cases issued in April. The prize for top case of the month goes to the D.C. Circuit for its May 17th decision in Am. Oversight v. HHS, which addressed Exemption 5’s consultant corollary doctrine. In most relevant part, the panel held in a 2-1 vote that communications between agencies and Congress (or their staffs) did not qualify as “intra-agency” records because “each side had an independent stake in the potential healthcare reform legislation under discussion.” In the majority’s view, this crossed the consultant corollary’s parameters established by the U.S. Supreme Court in Department of Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001). The dissent opined that the holding was “actually quite breathtaking” and would “chill communications between Congress and the Executive, stymie the working relationship between Congress and the Executive, and inhibit the President’s ability to perform effectively the core Article II duty of recommending legislation to the Congress.”

Top news:

In late May, the House Select Subcommittee on the Coronavirus Pandemic revealed that a former NIH senior advisor to Dr. Anthony Fauci improperly conducted official government business from his private email account and solicited help from the agency’s Freedom of Information Act office to dodge records requests. See, e.g., Liz Jassin, Did NIH officials hide COVID-19 records?, The Hill, May 23, 2024. Additional records released by the Subcommittee indicated that Dr. Fauci’s former chief of staff misspelled names in what appeared to be a deliberate attempt to keep the records from being found in keyword searches used to fulfill FOIA requests. See, e.g., Benjamin Mueller, Health Officials Tried to Evade Public Records Laws, Lawmakers Say, N.Y. Times, May 28, 2024.

Lookahead to June:

June 12, 2024: DOJ/OIP Exemption 4 and Exemption 5 Training

June 13, 2024: The last meeting of the FOIA Advisory Committee for the 2022-2024 term.

June 25, 2024: A panel discussion with government officials about GAO’s backlog report: Beat the Backlog: Decoding the GAO FOIA Report to Make a Difference in the Last Quarter of Your Program. Hosted by OPEXUS.

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

Monthly Roundup: March 2024

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

Court decisions:

We posted 27 decisions in March, the most active month of the year thus far. Of note, the D.C. Circuit’s decision in Leopold v. DOJ (Mar. 1, 2024) reminded agencies that they must sequentially analyze exemptions and foreseeable harm, which in this Exemption 8 case the agency failed to do. Although the Circuit stated in passing that the foreseeable harm requirement applied to “all exemptions, except Exemption 3,” a more recent district court opinion correctly pointed out that foreseeable harm would “always” be present when the government properly invokes Exemption 1. James Madison Project v. Office of the Dir. of Nat'l Intelligence (D.D.C. Mar. 26, 2024).

In the interval between the above two cases, the court in Inst. for Energy Research v. FERC (D.D.C. Mar. 13) found that FERC had reasonably defined a “record” as a single text message (as opposed to “threads”) given plaintiff’s request for specific text messages containing certain terms. In reaching its decision, the court relied on DOJ/OIP’s 1995 guidance on determining the scope of a FOIA request.

Top news:

On March 4, 2024, the Department of Justice’s Office of Information Policy (DOJ/OIP) announced that federal agencies received more than 1.1 million FOIA requests in fiscal year 2023, surpassing the government’s previous year’s total by nearly 30 percent. As FOIA Advisor reported the day before, the government’s backlog of requests increased slightly from 206,720 to 208,282.

The government released two major reports during ‘Sunshine Week,” which was observed from March 10, 2024, to March 16, 2024. First, on March 12, 2024, DOJ/OIP issued its annual FOIA Litigation and Compliance Report, which indicated among other things that 834 FOIA lawsuits had been filed in calendar year 2023. On the next day, March 13, 2024, the U.S. Government Accountability Office released an 80-page report entitled Freedom of Information Act: Additional Guidance and Reliable Data Can Help Address Agency Backlogs. In sum, GAO recommended that DOJ/OIP develop new guidance to ensure FOIA backlog reduction plans include clear goals, milestones, and timelines.

April lookahead:

April 3: DOJ training, Introduction to the Freedom of Information Act.

April 4: Meeting of the federal FOIA Advisory Commitee.

April 9: D.C. Circuit oral argument in Connell, III v. CIA, 23-5118. The lower court’s decision is here.

April 10: DOJ training, Processing a Request from Start to Finish.

April 17: Meeting of the Chief FOIA Officers Council.

Monthly Roundup: Feb. 2024

Below is our roundup of FOIA court decisions and FOIA news from February 2024, as well as a peek ahead to March.

Court decisions:

We posted 16 decisions issued in February. Of note, the U.S. District Court for the District of Columbia held in Protect the Public’s Trust v. IRS that plaintiff was eligible for attorney’s fees even though it never received responsive documents. The court reasoned that the IRS thrice refused to search for requested record and the agency changed its position only after being sued and ordered to file a dispositive motion. In AMA Sys. v. FDA, the U.S. District Court for the District of Maryland ruled that because all information protected under Exemption 4 is barred from disclosure under the Trade Secrets Act, the foreseeable harm test was inapplicable. This appears to be the first court to accept that argument, and it also appears to be inconsistent with DOJ/OIP’s 2023 guidance to agencies.

On February 16, FOIA Advisor published its list of notable court decisions issued in calendar year 2023.

News:

We were saddened to learn of the death of Dan Metcalfe, co-founder of DOJ/OIP.

Dozens of agencies posted their annual FOIA reports ahead of the March 1st posting deadline. Reports posted by DOJ, DOD, NARA, and HHS showed sizable increases in the volume of requests received. FOIA Advisor will post a summary of the overall data as soon as DOJ makes it available via FOIA.gov.

March lookahead:

March 5, 2024: FOIA Advisory Committee meeting.

March 11, 2024: Agencies are required to post their 2024 Chief FOIA Officer Reports online.

Sunshine Week is March 10 to March 16, 2024. Several federal agencies will host special events:

• March 11, 2024: Dep’t of Justice, annual Sunshine Week celebration, 10am-noon.

• March 13, 2024: Dep’t of Commerce, “The Power of Open Government,” 9am-1:30pm.

• March 14, 2024: Nat’l Archives & Records Admin., “Artificial Intelligence: The Intersection of Public Access and Open Government,” 1pm.

Monthly Roundup: Jan. 2024

Welcome to our first “Roundup.” At the beginning of each month, we’ll highlight the FOIA activity we’ve observed in the previous month, just in case you missed it. Additionally, we’ll point out what’s ahead in the 4 to 5 weeks,

Court decisions: We posted 16 decisions in January. Of note, the court in Children’s Health Def. v. FDA (D.D.C.) reminded us that a plaintiff-friendly judge in the Northern District of Texas has paralyzed the FDA’s FOIA operations with what might be the most burdensome production schedule in the history of FOIA litigation (180k pages per month). The CDC also has been ensnared by the same district court, which recently held that it would not be unreasonably burdensome for the agency to process 7.8 million “free text” messages over the next 12 months. See Freedom Coal. of Doctors for Choice v. CDC (N.D. Tex.).

OGIS: On January 25th, in a blog post discussing the history of the Glomar response, OGIS inexplicably expressed its support for a FOIA Advisory Committee recommendation to eliminate that term from agency lexicons, notwithstanding opposition from DOJ and others.

DOJ: On January 23rd, OIP solicited nominations for Sunshine Week FOIA awards for agency personnel.

Other news: Requesters filed 59 lawsuits across the country in January, according data posted by the FOIA Project. The most frequent filer was the Center for Immigrations Studies, with five cases.

February lookahead:

• On February 6th, OIP will host an Advanced Freedom of Information Act training for federal employees and contractors. Despite being virtual, it is listed as “sold out.”

• On February 14th, the D.C. Circuit will hear oral argument in Cabezas v. FBI. We will post a reminder the day before.

• On February 16th, the D.C. Circuit will hear oral argument in Assassination Archives & Research Ctr. v. DOJ. We will post a reminder the day before.

• By the end of the month, we expect most agencies to have posted their annual FOIA reports for FY 2023, which are due no later than March 1st.