FOIA News: U.S. Attorney General talks FOIA

Attorney General Merrick Garland provided the following remarks at DOJ’s virtual Sunshine Week event on March 15, 2021: https://youtu.be/OGRB22TZGbY.

FOIA News: Sunshine Week begins; FY 2020 FOIA stats

Happy Sunshine Week, which kicked off on Sunday, March 14, 2021. The National Archives and Records Administration will host a virtual celebration on Monday, March 15, 2021, from 1pm to 3pm. Watch the livestream on the National Archives’ YouTube Channel.

We have crunched the fiscal year 2020 FOIA data posted by the Department of Justice on FOIA.gov. Here are the highlights:

• Agencies received 790,772 requests, a 7.9 percent decrease from 2019 (858,952 requests).

• Agencies processed 772,952 requests, a 12 percent decrease from 2019 (877,964 requests).

• Unfulfilled requests climbed to 203,998, a 9.6 percent increase from 2019 (186,178 requests).

• Backlogged requests climbed to 141,794, a 17.4 percent increase from 2019 (120,796 requests).

• Average time to process “simple requests” was 32.28 days, a 17.9 percent improvement (39.30 days)

• Agency processing costs were $553,234,056.70, a 13.8 percent increase from 2019 ($486,194,199.50).

• Agency litigation costs were $42,913,963.52, a 10.9 percent increase from 2019 ($38,710,512.60).

• Fees collected from requesters totaled $2,113,456.41, a 17 percent decrease from 2019 ($2,547,638.48).

Note: Agency processing costs and litigation costs in 2020 are historic highs.

FOIA News: Judge amends order on Khashoggi tape

Judge Says Affirming Khashoggi Tape Would Hurt US Security

A New York federal judge has reversed course on his previous order that intelligence agencies must formally acknowledge the possession of a tape of the Saudi Arabian government's killing of journalist and dissident Jamal Khashoggi, saying that doing so would put national security at risk. Classified submissions by the Central Intelligence Agency and the Office of the Director of National Intelligence had shown that making an official acknowledgment about whether they possess the tape "would reveal information pertaining to intelligence sources and methods," U. S. District Judge Paul A. Engelmayer ruled on Tuesday.

Read more here (accessible with free trial subscription).

FOIA News: ICYMI...A Round-up of Recent FOIA News Stories & Commentary

DC Cir. Revives Law Prof’s FOIA Fee Dispute With IRS, Law360 (Mar. 9, 2021)

A University of Denver law professor is entitled to attorney fees after successfully litigating a Freedom of Information Act case with the IRS, the D.C. Circuit said Tuesday as it reversed a lower court’s decision denying the award.

Read more here (behind paywall).

Aimee Davenport, et al., Supreme Court Protects Drafts Under Deliberative Process Privilege, JDSupra (Mar. 9, 2021)

Last week, in Justice Amy Coney Barrett’s first signed opinion, the U.S. Supreme Court expanded the deliberative process privilege under exception 5 of the Freedom of Information Act (FOIA), limiting litigants’ ability to access certain documents while a matter is still under consideration by federal agencies.

Read more here.

Ariane de Vogue, Stephen Bryer adds ‘respect’ to his dissent of Amy Coney Barrett’s first opinion, CNN (Mar. 8, 2021)

Justice Amy Coney Barrett filed her first signed majority opinion last week, a momentous occasion for any new justice, and now she officially has the "respect" of the dissenting side.

Under court tradition, a new justice is usually assigned a relatively uncontroversial opinion that is often, although not always, unanimous. . . . But eyebrows were raised when Justice Stephen Breyer, joined by Justice Sonia Sotomayor, not only dissented, but omitted a key word in his dissent. Except in the most fiery cases when a justice really thinks the majority has gone astray, he or she usually ends an opinion with some formulation of "I respectfully dissent." But in his opinion, Breyer left out the respect part. . . . On Monday, without comment, the answer was clear. Breyer amended the opinion, clearly signaling that he meant no disrespect.

Read the full article here.

Alejandro Camacho & Melissa Kelly, Court favors deliberative-process privilege protections over FOIA transparency goals, SCOTUSblog (Mar. 6, 2021)

Notwithstanding the Freedom of Information Act’s primary goal of promoting transparency in government decision-making, the Supreme Court on Thursday ruled by a 7-to-2 vote that the public policy of facilitating agency candor in exercising its expertise in preliminary agency deliberations can outweigh such transparency and accountability concerns. Justice Amy Coney Barrett delivered the 11-page opinion, her first majority opinion since joining the court in October. It was a natural debut given that the case, U.S. Fish and Wildlife Service v. Sierra Club, was the first oral argument that Barrett heard after joining the bench.

Read more here.

Jeffrey Justman & Matt Sapp, Supreme Court Decides United States Fish and Wildlife Service et al. v. Sierra Club, Inc., JDSupra (Mar. 5, 2021)

On March 4, 2021, the U.S. Supreme Court decided United States Fish and Wildlife Service et al. v. Sierra Club, Inc., holding that the deliberative process privilege exemption in the Freedom of Information Act (FOIA) protects predecisional, deliberative draft opinions from disclosure.

Read more here.

William Droze, Supreme Court Sides with Agency on Deliberative Process Privilege, JDSupra (Mar. 5, 2021)

Today, in U.S. Fish and Wildlife Service et al. v. Sierra Club Inc., Case No. 19-547, the United States Supreme Court struck down a Ninth Circuit Court of Appeals’ ruling that the federal government was required to turn over documents with regard to a proposed U.S. Environmental Protection Agency (EPA) regulation for power plant cooling.

Read more here.

Supreme Court clarifies scope of the deliberative process privilege, Lexology (Mar. 5, 2021)

On March 4, 2021, the U.S. Supreme Court decided, in a 7-2 opinion written by Justice Amy Coney Barrett (her first majority opinion on the court), that the deliberative process privilege protects from disclosure under the Freedom of Information Act (FOIA) in-house draft biological opinions that are both pre-decisional and deliberative, even if the drafts do reflect an agency’s final position.

Read more here.

Ariane de Vogue, Justice Amy Coney Barrett’s first majority written opinion limits reach of FOIA, CNN (Mar. 4, 2021)

ustice Amy Coney Barrett penned her first Supreme Court majority opinion on Thursday, writing a 7-2 decision that will shield federal agencies from having to disclose certain materials under an exception to the Freedom of Information Act.

Read more here.

FOIA News: D.C. Circuit hears "FOIA record" argument

For those who missed this morning’s hearing in Cause of Action Inst. v. DOJ, here is the audio recording of the argument before the D.C. Circuit. Appellant’s opening argument, which was presented by Ryan Mulvey, comprises the first eighteen minutes of the recording. Notably, during the government’s argument, Senior Judge Harry Edwards stated that he was “flabbergasted” by the government’s “utterly bizarre” and “self-serving” position that a single, paginated document created by DOJ may be segmented into multiple records based on subject matter and then withheld in part as non-responsive to the request.

FOIA News: D.C. Circuit to hear "FOIA record" argument on March 9th

The U.S. Court of Appeals for the District of Columbia Circuit will hear argument this Tuesday in Cause of Action Institute v. DOJ, a FOIA case that challenges the Department of Justice’s 2017 guidance on defining the term “record.” The government prevailed in district court, which concluded that DOJ may segment a single document into multiple, smaller records based on subject matter and then withhold any records that are non-responsive to the request.

Our very own Ryan Mulvey will be arguing the case on behalf of Cause of Action Institute. Listen live here at 9:30 A.M.

FOIA News: OIP highlights recent SCOTUS decision, notes forthcoming guidance

Supreme Court Opinion Issues in FOIA Exemption 5 Case

Dep’t of Justice, Office of Info. Pol’y, FOIA Post, Mar. 4, 2021

Today the Supreme Court issued its opinion in United States Fish & Wildlife Service v. Sierra Club, 592 U.S. ___ (2021), holding that “[t]he deliberative process privilege protects from disclosure under FOIA in-house draft biological opinions that are both predecisional and deliberative, even if the drafts reflect the agencies’ last views about a proposal.”  The Court’s opinion can be found here.  

As with prior Supreme Court decisions and significant FOIA developments, the Office of Information Policy (OIP) will issue guidance and provide training on the impact of this decision.  In the meantime, agencies are always welcome to seek advice through OIP’s FOIA Counselor Service.

FOIA News: OIP releases 2020 Litigation and Compliance Report

2020 FOIA Litigation and Compliance Report Now Available

Dep’t of Justice, Office of Info. Pol’y, FOIA Post, Mar. 4, 2021

This week, the Office of Information Policy (OIP) posted the Department’s 2020 FOIA Litigation and Compliance Report.  In accordance with the FOIA, each year the Department of Justice submits to Congress and the President a report detailing our efforts to encourage agency compliance with the FOIA.  The report also contains a listing of all FOIA litigation cases received and decided in the prior calendar year.  The report highlights the many ways that OIP works to provide guidance, trainings, and counseling to agencies to assist them in their FOIA administration and to promote agency accountability.      

Read more here.

Read the report here.

FOIA News: Gov't decisively wins Exemption 5 SCOTUS case

In Barrett’s first majority opinion, court sides with government in FOIA dispute

By James Romoser, SCOTUSblog, Mar 4, 2021

The federal government does not have to fully disclose certain draft regulatory documents under the Freedom of Information Act, even if those documents reflect an agency’s final view about a policy proposal that it later abandons, the Supreme Court ruled Thursday. Justice Amy Coney Barrett wrote the opinion, her first majority opinion since joining the court in October.

The court sided 7-2 against the Sierra Club, which filed a FOIA request for “draft biological opinions” that environmental officials produced in 2013. Those opinions analyzed potential threats to endangered species from a proposed rule on underwater structures used to cool down industrial machinery.

Read more here.

FOIA News: "FOIA.gov" updated with FY 2020 data

NEW ANNUAL FOIA REPORT DATA PAGE AND AGENCIES' FISCAL YEAR 2020 DATA NOW AVAILABLE ON FOIA.GOV

By DOJ/OIP, FOIA Post, Mar. 2, 2021

The Office for Information Policy (OIP) is pleased to announce that it has recently upgraded the Annual Report Data page on FOIA.gov.  Since its initial launch in 2011, FOIA.gov has served as a dashboard of all agencies' Annual FOIA Report data.  Each year, federal departments and agencies are required by law to submit a report to the Attorney General detailing various statistics regarding their agency’s FOIA activities, such as the numbers of requests processed and received, and the time taken to process them.  The data from all of these Annual FOIA Reports is then published on FOIA.gov, the Justice Department’s government-wide FOIA resource, so that the public can easily view it and compare FOIA data by agency and over time.

Read more here.