FOIA News: Law journal article explores Exemption 3

Last week, the law journal of the St. Mary’s University School of Law published an article entitled Foiled FOIA: The Excessive Exemption, which examines how courts have treated Exemption 3 in the wake of the OPEN FOIA Act of 2009. In sum, the author concludes that the 2009 amendment to Exemption 3 requiring specific reference to the Act was “needless” and should be repealed.

FOIA News: Media requests to FDA and SEC portend news stories

Journalists Signal Upcoming Story Lines with FOIA Requests

FOIAengine: Insights From the Latest FDA and SEC Requests 

By Randy Miller, Law Street, Apr. 24, 2024

News media outlets are among the most prolific submitters of FOIA requests to federal agencies. These requests signal – in real time – the stories that journalists are researching and writing. To illustrate this point, we’re summarizing highlights of the hundreds of FOIA requests submitted by media organizations to the Food and Drug Administration and the Securities and Exchange Commission during March (the most recent month for which information is available). 

News Media FOIA Requests to the FDA

Members of the news media submitted 97 FOIA requests to the FDA last month, addressing a range of hot-button issues, including FDA review of Alzheimer’s drugs lecanemab and donanemab; the existence of counterfeit weight loss drugs; information about pharmacies in Pennsylvania providing mifepristone; pharmaceutical manufacturing facilities in India; the use of remdesivir for the treatment of Covid-19; and the Wanabana recall of lead-tainted pouches of apple puree and applesauce. See our March 13 article on Wanabana.

Read more here.

FOIA News: Toss FOIA suit of litigious ex-lawyer, argues Patent Office

Feds Want Disbarred Atty's FOIA Suit Over USPTO Docs Axed

By Dorothy Atkins, Law360, Apr. 24, 2024

The federal government urged a North Carolina federal court Wednesday to toss a disbarred attorney's sprawling Freedom of Information Act lawsuit over U.S. Patent and Trademark Office documents, arguing the case is one of a dozen duplicative, meritless suits the plaintiff has filed.

The motion asked U.S. District Judge James C. Dever III to dismiss Richard Polidi's latest pro se lawsuit for lack of jurisdiction, or alternatively for failure to state a viable claim.

In a footnote, the government said the lawsuit is one of 12 that Polidi, who was disbarred a decade ago over paying a client in a personal injury lawsuit, has filed "in contravention of judicial admonishment to stop filing 'meritless and repetitive claims in the [district] related to his disbarment.'"

Polidi filed the suit in September and amended it in February after the government filed its original motion to dismiss.

Read more here (accessible with free trial).

FOIA News: OIP announces upcoming NexGen 2.0 FOIA Tech Showcase

The Department of Justice’s Office of Information Policy has announced that a three-day virtual “NexGen 2.0 FOIA Tech Showcase” will be held next month. Full details, reproduced below, can be found at OIP’s blog.

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Register Now for NexGen 2.0 FOIA Tech Showcase for Federal Agencies

Dep’t of Justice, OIP Blog (Apr. 23, 2024)

The Office of Information Policy (OIP) is pleased to announce that the Technology Committee of the Chief FOIA Officers (CFO) Council, in conjunction with OIP and the Office of Government Information Services (OGIS), will host a three-day event for federal agencies called the NexGen 2.0 FOIA Tech Showcase on May 14-16, 2024.    

The Showcase is intended to identify FOIA technology solutions for federal agencies in response to existing FOIA case processing and backlog challenges, as well as raise awareness of existing technological capabilities utilizing artificial intelligence and other advanced technologies.  A variety of vendors will provide video demonstrations of their technology products for use in agency FOIA administration.  Agency Q&A with the vendor will follow each demonstration. 

This event is open to federal agency employees with a .gov or .mil email address only.  Registration is required on Eventbrite.  All attendees must register by 11:59 PM EDT on Sunday, May 12, 2024.  Links to each day’s event will be sent to all registered attendees on Monday, May 13th.  Additional details about the Chief FOIA Officers Council and the meeting, including the agenda, will be available on the Chief FOIA Officers Council Technology Committee website on FOIA.gov.   

FOIA News: Generative AI raises questions about federal records laws

Generative AI could raise questions for federal records laws

A clause in a DHS agreement with OpenAI opens the door to some debate on transparency issues.

By Rebecca Heilweil, FEDSCOOP, Apr. 22, 2024

The Department of Homeland Security has been eager to experiment with generative artificial intelligence, raising questions about what aspects of interactions with those tools might be subject to public records laws. 

In March, the agency announced several initiatives that aim to use the technology, including a pilot project that the Federal Emergency Management Agency will deploy to address hazard mitigation planning, and a training project involving U.S. Citizenship and Immigration Services staff. Last November, the agency released a memo meant to guide the agency’s use of the technology. A month later, Eric Hysen, the department’s chief information officer and chief AI officer, told FedScoop that there’s been “good interest” in using generative AI within the agency. 

But the agency’s provisional approval of a few generative AI products — which include ChatGPT, Bing Chat, Claude 2, DALL-E2, and Grammarly, per a privacy impact assessment — call for closer examination in regard to federal transparency. Specifically, an amendment to OpenAI’s terms of service uploaded to the DHS website established that outputs from the model are considered federal records, along with referencing freedom of information laws. 

Read more here.

FOIA News: CFO Council meeting on Apr. 17

As we reported in our March roundup, the Chief FOIA Officers Council will meet on Wednesday, April 17, 2024. The agenda is here and the presentation slides are here. See the livestream on NARA’s YouTube channel starting at 10am.

FOIA News: IRS improves FOIA performance, finds TIGTA audit

On April 11, 2024, the Treasury Inspector General for Tax Administration published an audit that was performed to determine whether the Internal Revenue Service properly withheld records pursuant to Exemption 7 or section 6103 of the Internal Revenue Code between October 1, 2022, and March 31, 2023. TIGTA found that the IRS properly invoked Exemption 7 in 98 of 99 requests sampled. TIGTA found no errors in 10 requests reviewed involving section 6103.

See the entire report here.

FOIA News: Peace Corps finalizes amendments to regulations

The Peace Corps published a final rule in the Federal Register on April 11, 2024, which reflect amendments to the agency’s FOIA regulations. The agency considered public comments, adopting several and rejecting others. The amendments are effective May 13, 2024.

FOIA News: D.C. Circuit argument on Tuesday, April 9

As we noted in our most recent monthly roundup, the D.C. Circuit will hear argument in the FOIA case in Connell v. CIA on April 9, 2024. The ACLU, which is representing the appellant, has issued a press release about the case. A live audio stream is available here.

FOIA News: CNN sues DOJ for Biden interview recordings

CNN sues for access to tape of Biden’s interview with investigators in classified docs probe

By Katelyn Polantz & Hannah Rabinowitz, CNN, Apr. 4, 2024

CNN has sued for access to recordings of federal investigators’ interview with President Joe Biden in the now-closed probe over his handling of classified documents.

The interview has become one of the most notable and politically controversial parts of special counsel Robert Hur’s investigation, which concluded there wasn’t enough evidence to charge Biden with criminal mishandling of records after his vice presidency. In a final report, Hur called Biden, 81, “a sympathetic, well-meaning, elderly man with a poor memory.”

The Justice Department released transcripts of Biden’s interview after Hur’s report was made public in February, but the department also has recordings.

Read more here.