FOIA News: OIP Recaps Best Practices Workshop

VIRTUAL BEST PRACTICES WORKSHOP FOCUSES ON TECHNOLOGY AND FOIA

Department of Justice Office of Information Policy, May 21, 2020

On April 20, 2020, 500 FOIA practitioners from across the government joined the Office of Information Policy (OIP) and the Office of Government Information Services (OGIS) for a virtual discussion on the Chief FOIA Officer (CFO) Council Technology Committee’s recent efforts to develop best practices and recommendations based on a study of agencies’ use of technology. The workshop featured the Committee’s co-chairs Eric Stein from the Department of State and Michael Sarich from the Veterans Health Administration, who highlighted the Committee’s recent accomplishments, reviewed several best practices on the use of technology in FOIA, and shared recommendations made to the CFO Council and the Committee’s 2020 agenda.

Read more here.

FOIA News: Office of National Drug Control Policy to Update FOIA Regulations

AGENCY: Office of National Drug Control Policy.

ACTION: Proposed rule.

SUMMARY: The Office of National Drug Control Policy (ONDCP) is updating its Freedom of Information Act (FOIA) implementing regulation to comport with the FOIA Improvement Act of 2016 and best practices. The proposed rule describes how to make a FOIA request with ONDCP and how the Office of General Counsel, which includes the ONDCP officials authorized to evaluate FOIA requests, processes requests for records. The proposed rule also states ONDCP’s Privacy Act Policies and Procedures. The proposed rule describes how individuals can find out if an ONDCP system of records contains information about them and, if so, how to access or amend a record. ONDCP seeks comments on all aspects of the proposed rule and will thoroughly consider all comments that are submitted on time.

DATES: Send comments on or before June 30, 2020.

Read more here.

FOIA News: President's visitor logs immune from FOIA requests

Trump’s Visitor List Not Subject to FOIA, 2nd Cir. Rules

Law360, May 18, 2020

The Second Circuit on Monday decline to revive an archivist’s suit seeking President Donald Trump’s visitor logs at the White House and his Mar-a-Lago residence in Florida, finding the president’s visitor schedule is not subject to Freedom of Information of Information Act requests.

Read more here (accessible with free trial subscription).

FOIA News: Yale looks at FOIA suit against SBA

The First Casualties of Emergency Relief Programs

By Bernard Bell, Yale J. on Reg., May 18, 2020

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This post will briefly discuss two aspects of the suit.  The first is obvious, can the SBA put off providing information of the type the media requesters are seeking to focus on its programmatic objectives?  The second, whether the SBA can withhold some of the information sought, is a bit less obvious.

Read more here.

FOIA News: Court questions HUD’s summer FOIA shutdown

HUD Asked If FOIA Summer Shutdown Plan Is 'Even Lawful'

By Frank G. Runyeon, Law360, May 15, 2020

A Manhattan federal judge on Friday questioned whether a federal agency had the right to effectively halt processing Freedom of Information Act requests for weeks or months as he mulled ordering the government back into action.

U.S. District Judge Lewis J. Liman told counsel for the U.S. Department of Housing and Urban Development he doubted that the government had the authority to simply stop handling FOIA requests while the agency rolls over its document review systems this summer from mid-June to mid-July, noting the government's responsibility to obey the law.

Read more here.

FOIA News: American Battle Monuments Commission Updates FOIA Regs

SUMMARY: This final rule amends the American Battle Monuments Commission’s (ABMC) regulations under the Freedom of Information Act (FOIA). The procedures and guidelines have been revised for compliance with FOIA to incorporate changes required by the FOIA Improvement Act of 2016 and applicable Department of Justice Office of Information Policy guidance.

Read more here.

FOIA News: DC Circuit questions whether Clinton should be deposed

DC Circuit Tells Lawyers in Clinton Emails Case: What's Left to Resolve?

Hillary Clinton's lawyers at Williams & Connolly, pointing to a 2018 D.C. Circuit decision, have argued there's no basis for a deposition. Judicial Watch, the plaintiff in the public-records case, contends the dispute is not moot.

By Mike Scarcella, Nat’l Law Journal, May 14, 2020 

A federal appeals court panel on Thursday injected some doubt over whether Hillary Clinton will be forced to sit for a rare deposition confronting her practice of using a private email server during her time as U.S. secretary of state.

The new order from the U.S. Court of Appeals for the D.C. Circuit asked the lawyers in the Freedom of Information Act case to address whether there is still a pending controversy to resolve. A panel of judges—Thomas Griffith, Cornelia Pillard and Robert Wilkins—on Thursday set oral argument for June 3.

Read more here.

FOIA News: Court will inspect Ukraine-related emails

Roger Stone Judge Orders White House to Turn Over Ukraine Emails Being Withheld from the Public

By Jerry Lambe, Law & Crime, May 13th, 2020

A federal judge in Washington, D.C. has ordered the White House to turn over 20 emails directly relating to President Donald Trump’s decision to withhold congressionally appropriated military aid from Ukraine. The administration has refused to produce the communications thus far, claiming the documents are protected from public release by executive privilege.

The order, issued by U.S. District Judge Amy Berman Jackson, stems from a Freedom of Information Act (FOIA) lawsuit filed by the New York Times which sought communications between Michael Duffey, Principal Associate Director for National Security Programs at the Office of Management and Budget (OMB), and Robert Blair, a senior advisor to then-Acting White House Chief of Staff, Mick Mulvaney.

Read more here.

FOIA News: NY Times, WaPo Sue Gov't For Info On Virus Relief Loans

NY Times, WaPo Sue Gov't For Info On Virus Relief Loans

By Hailey Konnath, Law360, May 12, 2020

Five major news outlets, including The New York Times, The Washington Post and Bloomberg, slammed the U.S. Small Business Administration for purportedly illegally rebuffing public records requests regarding its Paycheck Protection Program, telling a D.C. federal court Tuesday the SBA has "no basis" to withhold the information sought.

Those publications, along with investigative nonprofit ProPublica and Wall Street Journal parent company Dow Jones, said in their complaint that they've all requested SBA records that would identify and provide basic information about businesses that have received public assistance from the agency during the COVID-19 pandemic. That public assistance includes both the agency's Paycheck Protection Program and the Economic Injury Disaster Loan program, per the suit.

Read more here (subscription).

FOIA News: NYT editorial board bemoans FOIA delays

No, Your FOIA Request Cannot Wait ‘Until This Emergency Is Over’

Ignoring Freedom of Information Act requests during the crisis damages democracy.

NY Times Ed. Bd., May 12, 2020

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Unfortunately, far too many agencies have also interpreted the arrival of the coronavirus pandemic and necessary shelter-in-place orders as a justification for either further delaying or failing entirely to respond to FOIA requests. But local and federal government agencies continue to operate, albeit under altered circumstances, and the delays degrade the public’s trust in elected officials.

Taxpayers have a right to know how and where their money is being spent in the efforts to buy ventilators, masks and other essential supplies — and whether agencies are being forthright about their efforts. While the work of government continues, citizens are losing a fundamental right to transparency. That’s a threat to good government and democracy.

Read more here.