Obscure DHS Databases Make FOIA Impossible, Suit Says
By Melissa Angell, Law360, June 22, 2021
An immigrant advocacy group wants to know more about the U.S. Department of Homeland Security's "obscure" network of databases and how immigration agencies store their enforcement data…
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Reinforcements sought to shrink long FOIA backlog
By Michael Doyle, E&E News, June 21, 2021
The Interior Department's persistent Freedom of Information Act backlog continued to grow during the first months of the Biden administration, even as officials seek significant reinforcements to tackle the issue.
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Split 5th Circ. Annuls Atty's FOIA Helicopter Crash Docs Win
By Dave Simpson, Law360, June 17, 2021
A split Fifth Circuit panel ruled that the National Transportation Safety Board does not have to turn over documents about a helicopter crash…
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Feds Seek To Ax Trump-Era Suit Over 'Public Charge' Docs
Law360, June 16, 2021
The U. S. Citizenship and Immigration Services urged a Massachusetts federal judge Wednesday to toss a lawsuit accusing it of stonewalling a request for records about a leaked draft of a Trump administration-era "public charge rule" that scared immigrants away from using welfare benefits to which the law entitles them. Lawyers for Civil Rights made a Freedom of Information Act request in January 2019 seeking USCIS records relating to the leak of the proposed rule, which would have blocked immigrants from obtaining legal status if they used any local, state or federal social services. But the Trump administration never responded to the. . .
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'No Amount of Apologizing': Judge Scolds DOJ, but Pauses Release of Trump Prosecution Memo
“The department chose not to tell the court the purpose of the memorandum or subject it addressed at all, and no amount of apologizing for ‘imprecision’ in the language it did use can cure the impact of that fundamental omission,” U.S. District Judge Amy Berman Jackson wrote.
By Jacqueline Thomsen, Nat’l Law J., June 14, 2021
A federal judge in Washington, D.C., said Monday that she will pause the release of a legal memo about the Mueller report, but continued to take issue with some of the arguments the Justice Department has made in the case.
U.S. District Judge Amy Berman Jackson of the District of Columbia last month ordered that an Office of Legal Counsel memo on a potential prosecution of then-President Donald Trump based on Special Counsel Robert Mueller III’s findings be made public, citing discrepancies between DOJ officials’ descriptions of the memo and the memo itself, which she reviewed in private.
The Justice Department said it will appeal part of the ruling and asked Jackson to stay her order while it takes the case to the U.S. Court of Appeals for the D.C. Circuit. On Monday, Jackson granted that motion, finding “the public interest in disclosure now does not outweigh DOJ’s interest in preserving a privilege that would be lost if the Court were to order disclosure.”
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Pentagon renews effort to withhold more unclassified records
Biden administration continues what has become a seven-year annual tradition
By John M. Donnelly, Roll Call, June 10, 2021
Pentagon leaders are asking Congress to expand the kinds of unclassified information about military operations that the department can withhold from the public, continuing what has been an annual tradition for seven years and spanning three administrations.
Officials with the Pentagon general counsel’s office are requesting that the Armed Services committees, in writing the fiscal 2022 defense authorization bill, prescribe changes to the Freedom of Information Act that would limit public access to certain data.
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The United States Agency for International Development has issued a proposed rule that updates its FOIA regulations. The deadline to submit comments is August 9, 2021.
VW Asks 9th Circ. For Say Over Jones Day Docs In FOIA Suit
Law360, June 7, 2021
Volkswagen has told the Ninth Circuit that it should have a say on whether the U. S. Department of Justice releases confidential documents in response to a Freedom of Information Act lawsuit, saying Jones Day's findings on Volkswagen's internal investigation into the 2015 emissions-cheating scandal are protected. Volkswagen AG insisted in a Friday reply brief that it should be allowed to intervene in Loyola Marymount University professor Lawrence Kalbers' FOIA lawsuit seeking to get the Justice Department to publicly release Jones Day's findings — which have been kept under wraps — on how the "clean diesel" emissions-cheating scandal took shape, as well. . .
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The Project On Government Oversight (POGO) has asked the Department of Justice’s Inspector General to investigate whether four lawyers “committed perjury or other crimes” while defending DOJ in Citizens for Responsibility and Ethics in Wash. v. DOJ, No. 1:19-cv-01552-ABJ (D.D.C. May 3, 2021) (appeal pending), a FOIA case concerning DOJ’s review of Special Counsel Mueller’s report about Russian interference in the 2016 presidential election.
Read the letter here.
Towards a Definition of a FOIA “Record”: The D.C. Circuit’s Decision in Cause of Action Institute v. Department of Justice
By Ryan P. Mulvey & James Valvo, III, Yale J. on Reg. June 3, 2021
The Freedom of Information Act (“FOIA”) provides the public with access to “records” of the Executive Branch. It does not provide for disclosure of “information” in the abstract. Surprisingly, however, the definition of a “record” has never been established, despite the seeming inclusion of such a definition at Section 552(f)(2)(A). And although there is no shortage of caselaw on the distinct question of the meaning of an “agency record,” the antecedent question of what a “record” is has only recently started working its way through the courts. The D.C. Circuit’s recent opinion in Cause of Action Institute v. Department of Justice provides helpful, if incomplete, insight. The major takeaway from that decision is that agencies should no longer be permitted to break records into small pieces after receiving a FOIA request in order to avoid disclosure.
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