FOIA News: AG issues FOIA memo

Attorney General Merrick B. Garland Issues New FOIA Guidelines to Favor Disclosure and Transparency

By DOJ, Office of Public Affairs, Mar. 15, 2022

To mark the start of Sunshine Week, Attorney General Merrick B. Garland issued comprehensive new Freedom of Information Act (FOIA) guidelines today that strengthen the federal government’s commitments to transparency in government operations and the fair and effective administration of FOIA.

The Attorney General’s guidelines, which were announced in a memorandum, direct the heads of all executive branch departments and agencies to apply a presumption of openness in administering the FOIA and make clear that the Justice Department will not defend nondisclosure decisions that fail to do so. The guidelines also emphasize that the proactive disclosure of information is fundamental to the faithful application of the FOIA and note the Justice Department’s efforts to encourage proactive agency disclosures, including by providing more specific criteria regarding how relevant metrics should be reported in agency Annual FOIA Reports, as the Government Accountability Office recommended.

Read more here.

Related Wall Street Journal Street article here.

FOIA News: Recap of DOJ's Sunshine Week event

DOJ KICKS OFF SUNSHINE WEEK WITH ITS ANNUAL CELEBRATION EVENT

DOJ/OIP, FOIA Post, Mar. 14, 2022

The Office of Information Policy (OIP) celebrated its annual kick-off to Sunshine Week virtually on March 14, 2022.  The event featured remarks from Associate Attorney General Vanita Gupta and Office of Information Policy Director Bobak Talebian, as well as the presentation of the 2021 Sunshine Week FOIA Awards.

The livestreamed event began with keynote remarks from the Associate Attorney General, who emphasized “the fundamental importance of access to government information and an engaged citizenry to our democracy.”  Associate Attorney General Gupta shared that in her own work outside of government, she has “relied on the FOIA’s disclosure mandates” and “seen firsthand the critical role that the FOIA plays in ensuring the public’s access to government records.”

Read more here.

FOIA News: State Dep't will release Hunter Biden emails to NYT next month

The State Department said it'll hand over emails mentioning Hunter Biden to the New York Times

By Jacob Shamsian, Business Insider, Mar. 14, 2022

• The State Department said it'll give the New York Times records regarding Hunter Biden.

• The Times sued the agency in January after it allegedly slow-walked a records request.

• A lawyer for the Times said the State Department will start handing over records in April.

The US Department of State said it'll hand over email records mentioning Hunter Biden to the New York Times after the publication sued the federal agency.

In a court filing Friday, David McCraw, a lawyer representing the New York Times, wrote that the State Department had begun identifying records the Times requested through the Freedom of Information Act (FOIA) and agreed to give them to the Times starting in April.

Read more here.

FOIA News: Sunshine Week remarks from DOJ's Vanita Gupta; new AG guidance forthcoming

Associate Attorney General Vanita Gupta Delivers Remarks at Sunshine Week 2022 Celebration

By DOJ, Office of Public Affairs, Justice News, Mar. 14, 2022

Thank you, Bobby for your warm introduction. And Bobby, I truly appreciate your leadership of the Office of Information Policy (OIP) and the guidance that you provide to the Department of Justice and agencies across the federal government as we fulfill our obligations under the Freedom of Information Act (FOIA).

It is a pleasure to join you and to help kick off the department’s annual celebration of Sunshine Week. Every year, we celebrate the importance of government transparency during the week of President James Madison’s birthday. President Madison emphasized the fundamental importance of access to government information and an engaged citizenry to our democracy. In 1882, he famously wrote, “A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”

…

We at the department are always looking to improve our FOIA implementation. I want to thank the Attorney General for his leadership and support of the FOIA mission both here at the department and across government, and we are excited that later this week, the Attorney General will be issuing new guidelines that underscore our commitment to administering the FOIA with a presumption of openness.

Read more here.

[N.B. James Madison died in 1836 and thus wrote nothing in 1882, contrary to the AAG’s prepared remarks. Thanks to a loyal follower for pointing out that the quote originates from an 1822 letter from Madison to the Lieutenant Governor of Kentucky.]

FOIA News: More on FOIA Advisory Committee's Glomar proposals

Shhh! Don’t Say Glomar Anymore

By Bernard Bell, Yale Journal on Regulations, Mar. 14, 2022

Summary: This post summarizes a report adopted by the FOIA Advisory Committee on March 10, 2022, regarding the use of a Glomar response to neither confirm nor deny the existence of records responsive to a FOIA request.

* * *

The National Archives and Records Administration “established the Federal Freedom of Information Act (FOIA) Advisory Committee in 2014 to foster dialog between the Administration and the requester community, solicit public comments, and develop consensus recommendations for improving FOIA administration and proactive disclosures.” See Committee Home Page. The FOIA Advisory Committee commissioned its Classification Subcommittee to study the use of the Glomar doctrine and to make recommendations related to agency use of the Glomar doctrine.

The Subcommittee consisted of an academic, the co-chair of National Security Counselors (an ironically-named private transparency group), and the Associate General Counsel and Unit Chief of the FBI’s FOIA Litigation Unit.  The Subcommittee sought to conduct a survey of agency practices regarding invocation of the Glomar exception, which yielded only limited information due to the low agency response rate,[3] and ultimately produced a nine-page report dated March 1, 2022.  The full FOIA Advisory Committee adopted the report’s recommendations at its March 10, 2022 meeting.  Four Advisory Committee members voted against the report, and a fifth abstained.  See the FOIA Advisor Blog’s report on the meeting here; a recording of the meeting is accessible here.

Read the full article here.

FOIA News: Sunshine Week Proposal for a New FOIA Court

Creating a Freedom of Information court

By Ryan Mulvey and James Valvo, Americans for Prosperity Foundation, Mar. 14, 2022

One idea — which has rarely, if ever, been suggested — is the creation of a new federal court dedicated solely to hearing and deciding FOIA cases.

It goes without saying that FOIA’s judicial review provision needs some refurbishing. The volume of FOIA litigation nationwide has outpaced the ability of federal courts to deal with those cases in a timely manner. And most FOIA litigators and DOJ attorneys would agree that, quite apart from the increased volume of lawsuits, FOIA cases are often given the least attention of any on a district judge’s docket. To be sure, there are always exceptions; but few judges appear to enjoy, let alone dedicate much of their time and attention, to FOIA questions. This can have particularly significant consequences when courts decide novel questions about, say, the definition of a “record” or the complicated interaction of FOIA with other statutes.

A new Article III tribunal specializing in FOIA could have concurrent jurisdiction with the other federal courts already identified in the FOIA’s venue provision, thus allowing requesters a wider variety of potential fora in which to bring suit. The statute could direct that all appeals be heard by the D.C. Circuit. It may also be worth considering expanding the subject-matter jurisdiction of such a court to allow it to hear cases arising under other transparency statutes, such as the Privacy Act, Federal Records Act, and Presidential Records Act.

Read more here.

FOIA News: Senate hearing on records management

On March 15, 2022, the Senate’s Committee on Homeland Security and Governmental Affairs will hold a hearing entitled “Correcting the Public Record: Reforming Federal and Presidential Records Management.” Three witnesses will testify: (1) Jason R. Baron Professor of Practice, College of Information Studies, University of Maryland; (2) Anne Weismann, Outside Counsel for Citizens for Responsibility and Ethics in Washington and the Project on Government Oversight; and (3) Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law, The George Washington University Law School.

FOIA News: Awards announced for worst 2021 public records responses

The Foilies 2022

By Dave Mass et al., Elec. Frontier Found., Mar. 13, 2022

Each year during Sunshine Week (March 13-19), The Foilies serve up tongue-in-cheek "awards" for government agencies and assorted institutions that stand in the way of access to information. The Electronic Frontier Foundation and MuckRock combine forces to collect horror stories about Freedom of Information Act (FOIA) and state-level public records requests from journalists and transparency advocates across the United States and beyond. Our goal is to identify the most surreal document redactions, the most aggravating copy fees, the most outrageous retaliation attempts, and all the other ridicule-worthy attacks on the public's right to know.

Read more here.

FOIA News: Sunshine Week begins on March 13, 2022

Sunshine Week & Freedom of Information Day: March 13-19 & 16, 2022

U.S. Census Bureau, Mar. 13, 2022

According to Sunshineweek.org, “Sunshine Week was launched in 2005 by the American Society of News Editors — now News Leaders Association — and has grown into an enduring initiative to promote open government. Join News Leaders Association in the annual nationwide celebration of access to public information and what it means for you and your community. It’s your right to know.” 

Read more here.

FOIA News: More agencies post 2022 Chief FOIA Officer Reports

On March 7, 2022, we reported that agencies had begun to release their 2022 Chief FOIA Officer Reports. Here are several more reports that we have found online since then:

• U.S. Dep’t of Labor

• Securities & Exchange Commission

• Consumer Financial Protection Bureau

• U.S. Postal Service

• Pension Benefit Guaranty Corporation

• Federal Communications Commission

• U.S. Dep’t of State