EOIR Launches FOIA Public Access Link
U.S Dep’t of Justice, Justice News, Aug. 25, 2021
The Executive Office for Immigration Review (EOIR) has launched its Freedom of Information Act (FOIA) Public Access Link (PAL), a new online portal that streamlines records requests for parties with business before the agency and members of the public seeking records.
Read more here.
9th Circ. Tosses FOIA Suit Seeking Nuclear Energy Plant Docs
Law360, Aug. 24, 2021 -- The Ninth Circuit affirmed a lower court's string of decisions in favor of the U. S. Nuclear Regulatory Commission in Freedom of Information Act lawsuits over an incident at the San Onofre Nuclear Generating Station, holding that the lawsuits were filed prematurely. In a 15-page published opinion, a three-judge panel found on Monday that a lower court got it right when it determined that attorney Michael Aguirre failed to exhaust all remedies at hand in his records pursuit before suing the Nuclear Regulatory Commission a number of times. The panel noted in an issue of first impression for the circuit that those requesting. . .
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See the post below for a copy of the opinion.
The Securities and Exchange Commission issued a final rule on August 23, 2021, which removes a regulatory requirement to provide a computer terminal in the Commission’s Public Reference Room for persons who cannot access electronic records that the agency proactively publishes pursuant to FOIA.
DC Circ. Says Internet Browsing History Not Subject To FOIA
Law360, Aug. 23, 2021 -- The D. C. Circuit rejected a watchdog group's bid to obtain the web browsing histories of several senior government officials, including the director of the Office of Management and Budget and secretary of the U. S. Department of Agriculture, ruling that they are not considered agency records subject to disclosure under the Freedom of Information Act. A three-judge panel issued this holding Friday in a FOIA case brought by Cause of Action Institute, affirming a D. C. federal judge's November 2019 summary judgment order that said federal agencies lacked the requisite control over the history of all webpages to which a person has navigated,. . .
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See opinion in post below.
Multiple Post-Argus Decisions Hold No “Assurance of Confidentiality” Required for FOIA Exemption 4
By Crowell Moring, Aug.6, 2021
In a string of recent cases following the Supreme Court’s 2019 decision in Food Marketing Institute v. Argus Leader Media, multiple courts have held that a party submitting information to the government need not demonstrate it obtained an assurance of confidentiality from the government in order for the agency to justify withholding that information in response to an information request made under the Freedom of Information Act (FOIA). (Crowell & Moring previously wrote about the new test instituted by Argus Leader here.)
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Pending FOIA Case Has Major Implications For Trial Data Disclosure
By Beth Wang, inside Health Policy, Aug. 4, 2021
In a case with major implications for what kinds of clinical trial information can be made public, HHS and Sarepta Pharmaceuticals are asking a federal appeals court to uphold a lower court decision that FDA does not have to disclose confidential clinical trial information on Sarepta’s Duchenne muscular dystrophy drug, Exondys 51. HHS and Sarepta argue the information sought by the plaintiff, journalism professor Charles Seife, is confidential commercial information that FDA is not allowed to release under the Freedom of Information Act.
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The appeals court case is Seife v. United States Food and Drug Administration. The docket No. is 20-4072.
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During a July 29th hearing, D.C. federal judge Amit Mehta rebuked and threatened to sanction government officials for having ignored his prior ruling in Long v. ICE (D.D.C), a seven-year-old case concerning access to metadata and database schema for certain agency databases.
I am literally at a loss right now. I am at a loss. I have never, in my judicial career, had an agency respond to a judicial order in the way that ICE has responded to this order in this case.
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I'm not doing this anymore, because otherwise you all are going to get sanctioned. And I don't know how one really sanctions a federal agency. It's not like you can sanction them in a way that you sanction a party, like money is really going to matter to a federal agency.But you're going to get sanctioned unless something starts happening in this matter that is consistent with what has happened in this case. I don't understand this. You are thumbing your nose at what has happened in this case.
The judge subsequently ordered ICE and DOJ to have supervisory officials appear at a hearing on August 4, 2021.
I don't act this way with parties, I really don't, I try not to do this, but you all have really tried my patience. I don't know what more to do and I don't know what more to say other than escalating this to people who will actually understand that when a court actually rules on something, that that order should be followed. This is just unbelievable. It's unbelievable.
See full hearing transcript here.
A Hamilton University professor has published an article in the upcoming edition of Presidential Studies Quarterly that “explores the implementation of the Freedom of Information Act (FOIA) and analyzes how politicization affects aggregate federal executive branch transparency.” An abstract of the article, entitled “The Law: Government Transparency and Public Access,” is available here.
D.C. Circuit: FOIA’s ‘foreseeable harm’ standard has teeth
By Adam A. Marshall, Reporters Committee, July 27, 2021
In a case brought by the Reporters Committee and the Associated Press, the U.S. Court of Appeals for the D.C. Circuit issued an opinion earlier this month with its most expansive and detailed explanation of the Freedom of Information Act’s “foreseeable harm” provision to date, holding that the FBI failed to justify withholding documents regarding the agency’s impersonation of an Associated Press editor in 2007.
Read more here.
Gov't Defends Holding Info About Trump Name On Virus Checks
By Emlyn Cameron, Law360, July 19, 2021
The Treasury Department properly withheld information from ABC News after the organization asked for records on the decision to print former President Donald Trump's name on coronavirus relief payments sent by mail, the government said in a filing.
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