FOIA News: NLRB reports FOIA processing stats

In a press release issued today, the National Labor Relations Board reported that its FOIA branch “responded within 20 working days to 82% of FOIA requests and 100% of FOIA appeals” in fiscal year 2020. The NLRB further reported that “FOIA backlogs were reduced from 35 requests at the end of FY 2019 to 3 requests at the end of FY 2020, which is a decrease of 91%.” Neither the agency nor DOJ has yet posted NLRB’s FY 2020 annual report.

FOIA News: FOIA lawyer wanted by FBI

The FBI’s FOIA litigation unit is looking to hire an attorney. The deadline to apply is November 30, 2020. See vacancy announcement here.

FOIA News: CFBP issues final disclosure rule

The Consumer Financial Protection Bureau issued a final rule on October 29, 2020 that amends its regulation regarding the confidential treatment of information obtained from outside parties. See agency’s press release here.

FOIA News: D.C. Circuit declines to revisit request to depose Hillary Clinton

Full Panel of Federal Judges, Including Three Trump Appointees, Unanimously Reject Judicial Watch’s Effort to Depose Hillary Clinton

By Jerry Lambe, Law & Crime, Oct 28, 2020

The full panel of judges on the U.S. Court of Appeals for the District of Columbia on Wednesday rejected a request to revisit whether Hillary Clinton is required to answer questions about her use of a private server during her tenure as secretary of state.

None of the ten circuit judges participating in the matter requested a vote on the petition filed by the conservative activist group Judicial Watch, including Donald Trump-appointed Judges Gregory Katsas, Justin Walker, and Neomi Rao. Judge David Tatel, an appointee of President Bill Clinton, didn’t participate in the matter.

Read more here.

FOIA News: American Bar Association examines Exemption 5 SCOTUS case

Does the FOIA deliberate process privilege “die on the vine” when an agency changes its mind?

Mary F. Samuels, ABA, Oct. 30, 2020

After a landmark Freedom of Information Act (FOIA) decision in 2019 regarding Exemption 4, the U.S. Supreme Court is set to provide clarity on another controversial FOIA exclusion—Exemption 5.

In Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356 (2019), the Supreme Court rejected the 40-year-old “competitive harm” test associated with FOIA Exemption 4 as inconsistent with the language of the statute. Little more than a year later, on November 2, 2020, the Court will hear oral arguments regarding the scope of the much-disputed Exemption 5. Exemption 5 is invoked frequently by federal agencies, but courts often find that an agency has overreached in asserting the exemption. In U.S. Fish and Wildlife Service v. Sierra Club, No. 19-547, the Supreme Court must determine whether documents prepared by federal agencies during interagency consultation under the Endangered Species Act (ESA) are protected from compelled disclosure under FOIA—in particular, when one agency’s decision caused another agency to change its mind on its proposed rulemaking.

Read more here (accessible with membership).

FOIA News: FMCS launches new FOIA processing system

The Federal Mediation Conciliation Service announced today that it was employing FOIAXpress software to process and track FOIA requests and appeals. See press release here.

FOIA News: Court rules that Trump tweets were not a declassification order

U.S. judge accepts White House statement as rescinding Trump tweet calling for full declassification of Russia probe

By Spencer S. Hsu, Wash. Post, Oct. 21, 2020

A federal judge on Wednesday accepted a White House statement as rescinding President Trump’s tweets that called for the “total Declassification” of all documents in the government’s investigation of Russia’s intervention in the 2016 U.S. election.

But U.S. District Judge Reggie B. Walton in D.C. chided the president for his carelessness, saying the commander in chief’s words caused confusion on a matter of national security.

“It is unfortunate that we are in this situation because, obviously, whenever there’s a reference to the declassification of classified information, the words spoken should be artfully spoken so there’s no ambiguity as to what the intention was,” Walton said. “Obviously that’s not what occurred here.”

Read more here.

FOIA News: Trump tweets were not a declassification order, says White House

Meadows says Trump did not order declassification of Russia documents

By Morgan Chalfant, The Hill, Oct. 20, 2020

White House chief of staff Mark Meadows said Tuesday that President Trump’s tweets about declassifying documents related to the Russia investigation were not an order to declassify or release further documents.

Meadows said in a sworn declaration in federal court that Trump’s tweets earlier this month instead merely referred to the authority given to Attorney General William Barr by the president last year to declassify material related to the Russia investigation.

“The President indicated to me that his statements on Twitter were not self-executing declassification orders and do not require the declassification or release of any particular documents,” Meadows wrote in the declaration filed in federal court in Washington, D.C.

“The President’s statements do not require altering any redactions on any record at issue in these or any other cases, including, but not limited to, any redactions taken pursuant to any discretionary FOIA exemptions,” he added.

Read more here.

FOIA News: "Food for Thought" seminar on Oct. 22

The American Society of Access Professionals will virtually host a “Food for Thought” training seminar on October 22, 2020. The keynote speakers will be Bradley White, DHS, and Michael Morisy, Muckrock, who will discuss the recommendations of last term’s FOIA Advisory Committee. See here for more details.

FOIA News: HHS seeks experienced FOIA personnel

The U.S. Department of Health and Human Services is looking to hire two Supervisory Government Information Specialists for its headquarters office in Washington, D.C. The deadline to apply is Friday, October 23, 2020. See vacancy announcement here.