FOIA News: ICYMI, OIP updates Ex. 1 of FOIA Guide

On March 4, 2021, the Department of Justice’s Office of Information Policy posted an updated version of section Exemption 1 of the Guide to the Freedom of Information Act. All of the remaining Guide sections have been updated as of 2019 or 2020.

FOIA News: Two Exemption 5 decisions analyzed

Supreme Court and Ninth Circuit Limit Reach of Freedom of Information Act

By Marc Bruner, Perkins Coie, JD Supra, Mar. 19, 2021

The Freedom of Information Act requires that federal agencies make records available to the public upon request, unless the records fall within one of nine exemptions. “Exemption 5” covers inter-agency or intra-agency communications that would be privileged in civil litigation, including under the attorney-client, work product or deliberative process privilege. 5 U.S.C. § 552(b)(5). In two recent rulings, the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit shored up the grounds for invoking Exemption 5 and for withholding documents from public disclosure under the FOIA statute.

Read more here.

FOIA News: Senators seek to protect federal FOIA requesters from retaliation

Leahy Introduces Federal Employee Access To Information Act To Protect Federal Employees From Retaliation For Filing FOIA Requests

Press Release, Office of Sen. Patrick Leahy, Mar. 18, 2021

Senator Patrick Leahy (D-Vt.), along with Representatives Carolyn B. Maloney (D-N.Y.) and Gerald E. Connolly (D-Va.), Thursday introduced the Federal Employee Access to Information Act to ensure that federal employees are able to use the nation’s premier transparency law, the Freedom of Information Act (FOIA), without reprisal.  

Read more here.

FOIA News: GAO blogs about FOIA

Freedom of Information Act—How Open is Public Access to Government Data?

By Michelle Sager, GAO, Mar. 18, 2021

The Freedom of Information Act (FOIA) establishes a legal right for individuals and organizations to request access to government information. In FY 2019, federal agencies reported that they processed nearly 878,000 FOIA requests for government information, an increase of 32% since FY 2012.  

In honor of Sunshine Week—an annual observation that promotes open government—today’s WatchBlog post looks at our recent reports on agencies’ implementation of laws that seek to improve the public’s access to government information.

Read more here.

FOIA News: Gov Exec on FY 2020 Data and Request for GAO to Review Impact of Pandemic on FOIA

Coronavirus Roundup: More Feds Are Eligible for Vaccines; Calls to Review FOIA During Pandemic

By Courtney Buble, Government Executive, Mar. 17, 2021

According to an analysis by Allan Blutstein, founder of the noncommercial forum FOIA Advisor, in fiscal 2020––the year upended by the pandemic–– agencies received 7.9% fewer FOIA requests and processed 12% fewer than in fiscal 2019. The analysis, shared with Government Executive, also found that unfulfilled requests increased 9.6%, backlogged requests increased 17.4%, the average time to process a “simple request” decreased 17.9%, and agency processing and litigation costs increased by 13.8% and 10.9%, respectively.

….

In other FOIA-related news, a group of bipartisan senators on the Senate Judiciary Committee asked the Government Accountability Office on Monday to review how the pandemic has impacted agencies’ compliance with Freedom of Information Act requests.

Read more here.

FOIA News: GAO Report on Agency Compliance with Proactive Disclosure Requirements

Freedom of Information Act: Actions Needed to Improve Agency Compliance with Proactive Disclosure Requirements

Government Accountability Office, Mar. 17, 2021

The Freedom of Information Act requires federal agencies to provide public access to certain records and information without waiting for specific requests.

Only 1 of 3 agencies we studied had policies in place to address and document compliance with these proactive disclosure requirements. None of the 3 fully complied with requirements to track and report the number of records disclosed each fiscal year.

We made several recommendations to multiple agencies. For example, the Department of Justice should follow up with agencies that report making zero disclosures to help encourage agencies to make proactive disclosures as required.

Read more here.

FOIA News: Recap of DOJ's Sunshine Week event

DOJ'S SUNSHINE WEEK 2021 KICK-OFF AND ANNUAL FOIA AWARDS

DOJ/OIP, FOIA Post, Mar. 16, 2021

While the way in which attendees participated differed than in years past, the Office of Information Policy (OIP) celebrated its annual kick-off to Sunshine Week virtually on March 15, 2021.  The event featured remarks from the Attorney General, Acting Associate Attorney General, and OIP's Director, as well as the presentation of the 2021 Sunshine Week FOIA Awards.

The first entirely virtual DOJ Sunshine Week event began with a video message from Attorney General Merrick Garland.  On the very first day of his first full week in the Department, Attorney General Garland began his remarks by emphasizing that "[t]he principles of open government and democratic accountability are at the heart of who we are as public servants and as Americans.”  He further stated that "[w]ithout accountability, democracy is impossible.  And democratic accountability requires the kind of transparency that the FOIA makes possible.  That's why faithful administration of the FOIA is essential [to] American democracy." 

Read more here.

FOIA News: Senators seek to amend Exemption 4

Senators Grassley, Leahy, and Feinstein have introduced a bill, the Open and Responsive Government Act of 2020, that would restore Exemption 4’s substantial competitive harm test, which was nullified by the U.S. Supreme Court in 2019.

Read Senator Grassley’s press release here.

FOIA News: ICYMI, the worst FOIA responses of 2020

The Electronic Frontier Foundation and MuckRock News have announced the winners of the year’s worst public records responses in 2020. Enjoy the stories here.

FOIA News: Q&A with Interior's Deputy Chief FOIA Officer

Letting the Sun Shine on the FOIA

By Dep’t of the Interior, Blog, Mar. 15, 2021

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In the below Q&A, Deputy Chief Freedom of Information Act Officer Rachel Spector . . . discusses how FOIA works and why accountability matters.

Q: Happy Sunshine Week! Tell us what you do as a Deputy Chief Freedom of Information Act Officer (DCFO) for Interior.

A: In my role as DCFO, I run the Departmental FOIA Office (DFO), which was recently established to provide central governance and support to the FOIA offices in the Department’s component Bureaus/Offices. The DFO works with the FOIA Officers, who oversee the FOIA programs in their Bureaus/Offices, to develop effective policies and efficient best practices for FOIA request processing and engages with the FOIA Officers in collective problem-solving to identify, prioritize, and address the challenges they face. The DFO also works with Bureau/Office leadership to ensure that FOIA offices are sufficiently resourced. In addition, the DFO oversees the deployment of modern technology to facilitate efficient FOIA request tracking, case management, and processing, and provides targeted operational support to address large backlogs or complex issues.

Read more here.