On Friday, January 7, 2022, the U.S. Supreme Court will consider whether to grant a petition for a writ of certiorari to the Fifth Circuit case Jobe v. NTSB,. The petition asks the Court to reject the “consultant corollary” doctrine outright or, alternatively, to hold that a “self-interested party helping an agency to investigate its own conduct cannot possibly create “intra-agency” communications.” The docket material is available on SCOTUSblog here.
FOIA News (2015-2023)
FOIA News: Backlog of requests worsened at DOD, DOE, HHS, DOJ, and State in FY 2021; improved at Education; steady at Interior
FOIA News (2015-2023)CommentBacklogged FOIA requests increased by double digits in fiscal year 2021 at the Department of Defense; Energy; Health & Human Services; Justice; and State, according to quarterly data available on FOIA.gov. The Department of Education, by contrast, was able to reduce its backlog by double digits, while Interior’s backlog increased by only single digits. Here is a breakdown of the preliminary data:
Defense: 11% increase, from 16,000 backlogged requests in 2020 to 17,774 in 2021.
Education: 19% decrease, from 819 backlogged requests in 2020 to 693 in 2021.
Energy: 22.7% increase, from 554 backlogged requests in 2020 to 680 in 2021.
HHS: 14% increase, from 8817 backlogged requests in 2020 to 10,053 in 2021
Interior: 4% increase, from 4100 backlogged requests in 2020 to 4267 in 2021.
DOJ: 38% increase, from 36,018 backlogged requests in 2020 to 50,017 in 2021.
State: 15.8% increase, from 13,798 backlogged requests in 2020 to 15,984 in 2021.
Other cabinets agencies have not yet entered data in FOIA.gov for all four quarters of FY 2021. Agencies were required to provide their FY 2021 annual reports to DOJ’s Office of Information Policy for review by November 15, 2021, and they must post their annual reports online by March 1, 2021.
FOIA News: FERC wins Exemption 6 case at D.C. Circuit
FOIA News (2015-2023)CommentDC Circ. Sides With FERC Over Nonprofit's FOIA Suit
By Clark Mindock, Law360, Dec. 20, 2021
The D. C. Circuit has said the Federal Energy Regulatory Commission need not provide more than the initials and street names of property owners potentially impacted by a now-discontinued pipeline project, rejecting a nonprofit's claims that full names were necessary. A three-judge panel said Friday that the Niskanen Center had failed to identify an overriding public interest that would compel the federal agency to disclose the full names and addresses of landowners who own property along the pipeline's path since the nonprofit would've been able to figure out those contacts from the offered information. While the Niskanen Center had argued the Freedom. . .
Read more here (accessible with free 7-day trial)
Copy of decision here.
FOIA News: DOJ updates Exemptions 4 and 7(F) of FOIA Guide
FOIA News (2015-2023)CommentOn December 16, 2021, the Department of Justice’s Office of Information Policy issued updated versions of Exemption 4 and Exemption 7(F) of the Guide to the Freedom of Information Act.
FOIA News: Congressmen seek to expedite COVID FOIA requests
FOIA News (2015-2023)CommentReps Roy, Norman launch effort to bring transparency on COVID FOIA requests
Press Release, Office of Rep. Chip Roy, Dec. 17, 2021
On Thursday, Rep. Chip Roy (TX-21) and Rep. Ralph Norman (SC-05), joined by several of their House colleagues, introduced the Answer COVID FOIAs Now Act to require current outstanding COVID-related FOIA requests to be completed within 100 days. The introduction follows reports that the Public Health and Medical Professionals for Transparency (PHMPT) is suing the Food and Drug Administration (FDA) for failure to produce requested documents via FOIA and asking to have until 2097 to do so.
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This bill would ensure expedited processing of COVID-related FOIA requests.
COVID-related FOIAs are those that relate to:
A drug or medical device to treat, prevent, or mitigate COVID-19;
Gain-of-function or potential pandemic pathogen (P3) research;
A policy, rule, or standard requiring vaccination of individuals.
If agency heads fail to complete the requests within 100 days, a penalty of $1 million would be taken from the office of the head of the federal agency and transferred to the Countermeasures Injury Compensation Program.
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Full text of the legislation is available at the link here.
See full press release here.
FOIA News: ICE defends withholding of docs on state judge who aided illegal alien
FOIA News (2015-2023)CommentICE Looks To Escape Suit Seeking Mass. Judge Docs
By Alyssa Aquino, Law360, Dec. 15, 2021
U.S. Immigration and Customs Enforcement urged a Massachusetts court to end litigation seeking records on a state court judge accused of helping an undocumented immigrant evade ICE custody, saying that certain sought-after documents would harm pending criminal proceedings if released. The agency said it has already released dozens of pages of information compiled during its investigation of Judge Shelley Richmond Joseph and court officer Wesley MacGregor, Judge Joseph's alleged accomplice. But the agency has claimed Exemption 7(A) of the Freedom of Information Act, which allows the government to shield information whose release could interfere with law enforcement proceedings, to withhold three. . .
Read more here (accessible with free trial subscription)
FOIA News: 2022 nominations open for worst open records responses
FOIA News (2015-2023)CommentHave an Open Records Horror Story? Shine a Light by Nominating an Agency for The Foilies 2022
By Dave Maas, Elec. Frontier Found., Dec. 14, 2021
We are now accepting submissions for The Foilies 2022, the annual project to give tongue-in-cheek awards to the officials and institutions that behave badly—or ridiculously—when served with a request for public records.
Compiled by the Electronic Frontier Foundation (EFF) and MuckRock, The Foilies run as a cover feature in alternative newsweeklies across the U.S. during Sunshine Week (March 13-19, 2022), through a partnership with the Association of Alternative Newsmedia.
Read more here.
This article is crossposted at MuckRock and was co-written by Michael Morisy.
FOIA News: FDA offers to release 12k pages of vaccine data by end of January
FOIA News (2015-2023)CommentWe'll all be dead before FDA releases full COVID vaccine record, plaintiffs say
By Jenna Greene, Reuters, Dec. 13, 2021
In advance of a court hearing before a federal judge in Fort Worth, Texas, Tuesday, the Food and Drug Administration has offered by the end of January to make public 12,000 pages of data that it relied on to license Pfizer-BioNTech’s COVID-19 vaccine.
At first glance, that sounds like a lot of material.
Except a group of scientists and doctors who’ve sued the agency under the Freedom of Information Act is seeking an estimated 400,000-plus additional pages of information about the vaccine’s approval. Under the FDA’s proposed schedule – the agency pledges to release “a minimum” of 500 pages a month after the initial dump – the full trove might not be made public until the year 2097.
Read more here.
FOIA News: FOIA Advisory Committee meeting on Dec. 9, 2021
FOIA News (2015-2023)CommentFOIA News: Trump Agreements With IRS, But Not Tax Returns, Must Be Released
FOIA News (2015-2023)CommentTrump Agreements With IRS, But Not Tax Returns, Must Be Released
Bloomberg Tax, Dec. 6, 2021
Information tied to any compromise agreements that former President Donald Trump made with the IRS over his personal and business tax returns must be released, even though the underlying returns are protected, a federal court ruled.
The decision included partial wins for both the IRS and the Electronic Privacy Information Center, a nonprofit that requested personal and business tax records tied to Trump under the Freedom of Information Act. The center argued that an exception under tax code Section 6103(k)(1) to the general law protecting tax return privacy applied pertaining to return information that is necessary to allow for an inspection of any accepted offer-in-compromise between a taxpayer and federal tax authorities.
Read more here.