FOIA News: Nominations open for worst agency FOIA responses

It’s time once again: Share your transparency horror story with a nomination to The Foilies 2023

The Electronic Frontier Foundation and MuckRock partner once again to highlight what not to do when you work for the public

By Derek Kravitz, MuckRock, Dec. 19, 2022

We are now accepting submissions for The Foilies 2023, 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 and MuckRock, The Foilies run as a cover feature in alternative newsweeklies across the United State, during Sunshine Week (March 12-18, 2023), through a partnership with the Association of Alternative Newsmedia.

Read more here.

FOIA News: Backlogs increased at top 3 agencies in FY 2022; DHS received 471k requests

The overdue FOIA requests of the Departments of Homeland Security, Justice, and Defense—the three most popular agencies for FOIA requesters—all increased in fiscal year 2022, according to quarterly data reported by DOJ’s website FOIA.gov.

• The Department of Homeland Security, which in FY 2021 received the most FOIA requests governmentwide (442,650 requests, or 53 percent), saw its backlog climb from 25,102 in FY 2021 to 60,688 in FY 2022—a 141 percent increase. DHS received 471,513 requests in FY 2022, the greatest number of requests DHS has ever received and a 6.5 percent increase from FY 2021. The Department processed 530,180 requests in FY 2022, the largest number of requests it has ever processed and a 13.4 percent increase from FY 2021.

• The Department of Justice, which in FY 2021 received the second most FOIA requests governmentwide (97,490 requests or 12 percent), allowed its backlog to rise from 49,959 in FY 2021 to 63,728 requests in FY 2022—a 27.5 percent increase. DOJ received 93,407 requests in FY 2022, while it processed 84,099 requests—an 11.4 percent increase from FY 2021.

• The backlog of the Department of Defense, which in FY 2021 received the third most FOIA requests governmentwide (52,805 or 6 percent), rose from 17,597 in FY 2021 to 18,708 in FY 2022—a 6.3 percent increase. DOD received 57,237 requests in FY 2022, an 8.4 percent increase from FY 2021; it processed 54,560 requests in FY 2022 versus 50,703 requests in FY 2022.

FOIA News: FOIA operating procedures are tough to get, says digital rights group

Federal Agencies Keep Rejecting FOIA Requests for Their Procedures for Handling FOIA Requests

By Beryl Lipton, Elec. Frontier Found., Dec. 16, 2022

The majority of federal agencies — including law enforcement agencies like Customs and Border Protection — are refusing to release some of the most basic guidance materials used by their Freedom of Information Act (FOIA) offices: procedures for how they do their jobs.

Government Attic, a website that regularly files FOIA requests and posts the provided records, estimates that at least 60 percent of federal agencies, when faced with filling requests for FOIA standard operating procedures (SOP), claimed that the documents are in draft form and exempt from disclosure or that they don’t have any such records at all. 

Read more here.

FOIA News: NARA proposes to release Hunter Biden emails

The National Archives wants to release hundreds of pages of emails about Hunter Biden and Burisma — and the White House won't say whether it will let it happen.

By Mattathias Schwartz, Business Insider, Dec. 14, 2022 

• The emails are from 2014, when President Joe Biden served as vice president under former President Barack Obama.

• The White House now has 60 days to decide whether to stop the release of the emails by invoking executive privilege. 

The National Archives and Records Administration (NARA) is quietly preparing to release hundreds of pages of internal Obama White House records that could contain information about Hunter Biden's relationship with Ukrainian energy company Burisma, Insider has learned — and the Biden Administration, which could put a stop to it by invoking executive privilege, is refusing to say whether it will allow the release to go forward.

Read more here.

FOIA News: EEO-1 data to be released next month

Update: OFCCP Plans to Disclose EEO-1 Data for Non-Objecting Contractors Starting January 2023

By Abby Warren, Nat’l Law Rev., Dec. 13, 2022

As an update to our October 12, 2022 post regarding the deadline for federal contractors and first-tier subcontractors to object to disclosure of their Type 2 Consolidated EEO-1 reports from 2016 to 2020, the Office of Federal Contract Compliance Programs (OFCCP) has provided federal contractors with more information regarding the release of such information.

Specifically, non-objecting contractors began receiving e-mails from the OFCCP as early as November 22, 2022, notifying them of the agency’s intent to release the EEO-1 data beginning on January 2, 2023. The e-mail stated that if the contractors believe the OFCCP sent this message to them in error – for example, if the company filed objections or did not meet the requirements for disclosure during a specific time period – contractors should reach out to the OFCCP as soon as possible, but no later than January 2, 2023.

Read more here.

FOIA News: Maryland, My Maryland

After a hiatus, the Maryland FOIA-mobile has returned. The owner’s identity is known, but will not be revealed here to protect his or her privacy.

FOIA News: Senators propose expanding FOIA to Federal Reserve Banks

Senators Elizabeth Warren and Pat Toomey unveiled a bill on Friday, December 9, 2022, that would subject all regional Federal Reserve Banks to the Freedom of Information Act. Press release is here. Summary of the bill is here.

FOIA News: Academic Commentary on Campaign Legal Center v. DOJ (Part III of III)

Campaign Legal Center v. DOJ - FOIA Postscript to Department of Commerce v. New York (Part III)

Bernard Bell, Yale J. on Reg., Notice & Comment Blog, Dec. 4, 2022

Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. DOJ, 34 F.4th 14 (D.C. Cir. 2022). This is the third in a series of three posts addressing Campaign Legal Center. Having discussed the D.C. Circuit’s dismissive treatment of a potential “government misconduct” exception argument (Part I), and then laid out the caselaw regarding that exception (Part II), this third post will provide my own analysis of the issue at the heart of the case.

Read more here.

FOIA News: Academic Commentary on Campaign Legal Center v. DOJ (Part II of III)

Campaign Legal Center v. DOJ - FOIA Postscript to Department of Commerce v. New York (Part II)

Bernard Bell, Yale J. on Reg., Notice & Comment Blog, Nov. 29, 2022

Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. DOJ, 34 F.4th 14 (D.C. Cir. 2022). This is the second in a series of three posts discussing Campaign Legal Center. The first post provided the factual background for Campaign Legal Center and described the D.C. Circuit’s resolution of the issue. This post lays out the history of the “government misconduct” exception to the deliberative process privilege.

Read more here.

FOIA News: FOIA Advisory Committee hosts expert panel to discuss FOIA challenges

NARA’s Federal FOIA Advisory Committee held its most recent meeting on December 1, 2022. As part of the meeting, the Committee hosted a special panel of experts, who discussed complex FOIA requests and litigation. The panelists were Anne Weismann, formerly of Citizens for Responsibility and Ethics in Washington; Katie Townsend, Reporters Committee for Freedom of the Press; and Ryan Mulvey, Americans for Prosperity Foundation (and contributor at FOIA Advisor).

A recording of the meeting is available here on YouTube.

The panel discussion begins roughly at the 18’ 30” mark.