FOIA News: FOIA requests do not confer standing in constitutional case against CPSC, opines professor

Supreme Court Should Not Review Phony Separation of Powers Case

By Alan B. Morrison, Regulatory Rev., Aug. 19, 2024

At the U.S. Supreme Court’s September conference, it will be asked, in Consumers’ Research v. Consumer Product Safety Commission, to grant review and decide an important separation of powers question: whether the statutory provision that protects the five Consumer Product Safety Commission (CPSC) commissioners from being removed from office at-will by the President, except for neglect of duty or malfeasance in office, is constitutional. However, because the petitioners lack standing, the Court should deny review and await a case in which the issue is properly presented.

* * *

To begin, the petitioners, including Consumers’ Research, are not manufacturers or sellers of a product that the CPSC regulates; they are not subject to any CPSC regulations; and they have not had any enforcement actions brought against them. They also do not allege that the CPSC has, for example, failed to regulate toys such that their children are placed in danger. Instead, they are two educational organizations that often submit requests for CPSC records under the Freedom of Information Act (FOIA), and they did so here.

Read more here.

FOIA News: Archivist announces new federal FOIA Advisory Committee members

Archivist of the United States Appoints 2024–2026 FOIA Advisory Committee Members

Nat’l Archives & Records Admin., Press Release, Aug. 15, 2024

Archivist of the United States Dr. Colleen Shogan announced the appointment of 20 individuals to the National Archives and Records Administration’s 2024–2026 Freedom of Information Act (FOIA) Advisory Committee. The individuals named will serve a two-year term and will begin meeting in September 2024.

The FOIA Advisory Committee consists of no more than 20 individuals who are all FOIA experts from both inside and outside of government. Members of the FOIA Advisory Committee foster dialogue between the administration and the requester community, and develop recommendations for improving FOIA administration and proactive disclosures. Dr. Shogan has appointed the following individuals: 

Read more here.

Congratulations to FOIA Advisor’s Ryan Mulvey on his appointment.

FOIA News: This and that

• For the first time since the COVID-19 pandemic, the federal FOIA Advisory Committee will meet in person for the opening meeting of the 2024-2026 term on September 9, 2024. Stay tuned for an announcement on new Committee members.

• Thirty-five years ago, the Department of Justice’s Office of Information Law and Policy (the forerunner of OIP) published the first volume of the FOIA Update, which later became the FOIA Post.

• Law360 has published an uncritical article about efforts to expand the FOIA to the judiciary.

• An e-discovery firm discussed several FOIA responses that went “FUBAR.” [Yours truly filed one of the cited requests on behalf of America Rising]

• The FBI has posted another installment of records concerning hijacker D.B. Cooper.

• The Government Attic has posted emails of former EPA administrator Andrew Wheeler from July 2018, immediately after Scott Pruitt resigned.

FOIA News: U.S. Marshals settles suit for SCOTUS travel records

DOJ, Watchdog Agree To End Dispute Over Justices' Travel Docs

By Rose Krebs, Law 360, Aug. 9, 2024

The U.S. Department of Justice and judicial watchdog group Fix the Court said in a Friday filing that they have agreed to dismiss a complaint accusing the department of failing to deliver on requests for reports about travel by U.S. Supreme Court justices.

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In January 2023, Fix the Court filed a complaint saying that the U.S. Marshals Service had not fully responded to a Freedom of Information Act request for marshals' "special assignment" reports. Such reports are filed for deputy marshals who provide on-request security coverage for justices while they travel.

Fix the Court put a request in for "reports prepared for travel taken and events attended by U.S. Supreme Court justices in which they were accompanied by USMS personnel between January 1, 2018, and September 30, 2022," according to the complaint.

Read more here (accessible with free trial).

FOIA News: Postal Regulatory Commission amends FOIA regs

The Postal Regulatory Commission has approved amendments to its FOIA regulations, according to a final rule scheduled to be published in the Federal Register on August 9, 2024.

Read the final rule here.

FOIA News: OGIS hits the road

OGIS Public Engagement Spans the Globe

By Kimberlee Ried, FOIA Ombudsman, Aug. 5, 2024

The summer of 2024 has been busy for OGIS staff as we traveled to several conferences to share and present information about the work of the FOIA Ombuds office. Below is a brief recap.

In June, OGIS staff traveled to the American Society of Access Professionals (ASAP) conference in Anaheim, CA, to teach two sessions and moderate two panels. The sessions focused on customer service tips, including communicating and negotiating with requesters, and on understanding OGIS’s role as the FOIA Ombuds office.

Read more here.

FOIA News: Judge rejects bid by Judicial Watch, Daily Caller to reopen fight over access to Biden Senate papers

Judge rejects bid by Judicial Watch, Daily Caller to reopen fight over access to Biden Senate papers

By Randall Chase, Associated Press, Aug. 6, 2024

A Delaware judge has refused to vacate a ruling denying a conservative media outlet and an activist group access to records related to President Joe Biden’s gift of his Senate papers to the University of Delaware.

Judicial Watch and the Daily Caller News Foundation sought to set aside a 2022 court ruling and reopen a FOIA lawsuit following the release of Special Counsel Robert Hur’s report about Biden’s handling of classified documents.

Read more here.

FOIA News: Second Circuit finds post-9/11 congressional ‘torture’ report not subject to FOIA

Second Circuit finds post-9/11 congressional ‘torture’ report not subject to FOIA

By Nika Schoonover, Courthouse News Service, Aug. 5, 2024

A report produced by Congress on the CIA’s post-9/11 detention and interrogation program is not covered by the federal freedom of information law, a Second Circuit panel found Monday.

In the aftermath of the terrorist attacks of September 11, 2001, the Senate Select Committee on Intelligence generated a report on the Detention and Interrogation Program conducted by the CIA. The committee then transmitted the report to various agencies covered under the federal Freedom of Information Act.

Read more here.

FOIA News: This and that

• A prominent economist has sued the IRS for failing to respond to his FOIA request concerning his failed bank. See Aliss Higham, IRS Sued by Economist After His Bank Was Shut Down, Newsweek, Aug. 1, 2023.

• The U.S. Secret Service has unsurprisingly denied several requests from Judicial Watch pertaining to the attempted assassination of former President Trump. In a press release issued on July 31st, Judicial Watch unsurprisingly threatened to bring suit.

• DOJ’s Office of Information Policy has updated its summary of court decisions through July 3, 2024.

• NARA’s Office of Government Information Services has posted the minutes and transcripts of all the 2024 meetings held by the federal FOIA Advisory Committee.

• The FBI recently posted a 1998 threat assessment pertaining to Justice Ruth Bader Ginsburg, as well as records from its background investigation conducted prior to her 1993 confirmation.

FOIA News: Interior-BLM responds to backlog complaints

Stone-Manning says BLM trying to reduce FOIA backlog

But a leader with PEER said the agency isn’t taking sufficient steps to provide information more quickly.

By Scott Streater, E&E News, July 24, 2024

The head of the Bureau of Land Management acknowledged in a recent letter to a conservation group that the agency has a problem responding to open records requests, but said officials are taking substantive steps to resolve the issue.

BLM Director Tracy Stone-Manning, in a letter sent last week to Public Employees for Environmental Responsibility, wrote that the bureau this year has implemented a series of moves designed to whittle down a Freedom of Information Act backlog of nearly 1,600 requests.

But PEER Rocky Mountain Director Chandra Rosenthal wrote Wednesday in a blog post on the watchdog group’s website that the moves outlined in Stone-Manning’s letter are “equivalent to trying to reduce an iceberg one ice cube at a time.”

Read more here (subscription required).