FOIA News: OGIS assessment of first-party requests

On August 30, 2021, the Office of Government Information Services released an assessment of “common categories of records requested frequently under the FOIA and/or Privacy Act by – or on behalf of – individuals seeking records about themselves.” In sum, OGIS recommended that agencies “examine closely all of the records that they generate, collect and/or maintain and seek creative ways to provide non-FOIA access to first-party records when possible.” It also recommended that “agencies use their websites to explain, in plain language, the steps requesters should take to obtain access to first-party records.”

FOIA News: Reporters Committee on Recent DC Circuit Decisions

DC Circuit issues two notable FOIA decisions

By Gabe Rottman, Reporters Committee for Freedom of the Press, Aug. 30, 2021

Last week, the U.S. Court of Appeals for the District of Columbia Circuit issued decisions in two cases involving the government’s withholding of records or information under the Freedom of Information Act. While the government’s asserted rationale for withholding in each of the two cases differed, in both instances the appellate court affirmed holdings in the U.S. District Court for the District of Columbia finding that the information in question could be withheld.

In the first of the decisions, issued last Tuesday, the appellate court upheld the National Security Agency’s withholding of a 2017 memorandum memorializing a conversation between former President Donald Trump and NSA Director Michael Rogers in a FOIA lawsuit brought by Protect Democracy. The court found the memo properly withheld under the FOIA exemption incorporating executive privilege, and refused to recognize a “misconduct” exception advanced by plaintiffs.

Read more here.

FOIA News: FOIA conference on Sept. 16, 2021

The Digital Government Institute will be hosting a two-hour virtual conference on the FOIA on September 16, 2021. Among the speakers will be officials from the Government Accountability Office and the National Archives and Records Administration. Here are the links to the conference agenda and the registration page.

FOIA News: Mine Safety commission will amend FOIA regulations

The Federal Mine Safety and Health Review Commission is proposing to update its FOIA regulations, as set forth in a notice scheduled to be published in the Federal Register on August 30, 2021. The public comment period is open through September 29, 2021.

FOIA News: EOIR launches FOIA request portal

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.

FOIA News: Ninth Circuit shields the NRC from premature lawsuit

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. . .

Read more here (accessible with free trial subscription).

See the post below for a copy of the opinion.

FOIA News: SEC amends FOIA regulations

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.

FOIA News: Browsing histories are not agency records, rules D.C. Cir.

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,. . .

Read more here (accessible with free trial subscription).

See opinion in post below.

FOIA News: Law firm issues Exemption 4 alert

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.) 

Read more here.

FOIA News: 2nd Circuit to consider whether FDA can withhold clinical trial info

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.

Read more here (accessible with free trial subscription)