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.

Court opinion issued Mar. 11, 2022

Am. Immigration Council v. U.S. Customs & Border Patrol (D.D.C.) -- deciding that: (1) CBP failed to perform adequate search for various records pertaining to pilot program allowing CBP officials to conduct asylum-related interviews; (2) DHS and USCIS did not provide sufficient information to justify its withholdings pursuant to Exemption 5’s deliberative process privilege, nor did they satisfy statute’s foreseeable harm provision; and (3) government improperly relied on Exemptions 6 and 7(C) to withhold names of CBP officers appearing on one document.

Summaries of all published opinions issued since April 2015 are available 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

FOIA News: Americans for Prosperity Foundation Hosts Sunshine Week 2022 Symposium

On March 18, 2022 at 1:00 PM ET, Americans for Prosperity Foundation will host a virtual Sunshine Week 2022 Symposium featuring FOIA Advisor contributors Allan Blutstein and Ryan Mulvey. Information on the event, panelists, and registration information below.

The discussion will involve reflection on this year's submissions to the AFPF Sunshine Week 2022 Essay Symposium, as well as broader conversation about the state of FOIA and the prospects for change.

Learn more about the symposium, and read the panelists' essays here:
Panelists:
Ginger Quintero-McCall, Demand Progress
Matt Topic, Loevy & Loevy
Kate Oh, American Civil Liberties Union
Allan Blutstein, America Rising / FOIA Advisor
Kel McClanahan, National Security Counselors
Susan Harley, Public Citizen
Melissa Wasser, Project on Government Oversight
Moderator:
Ryan Mulvey, Americans for Prosperity Foundation

Register for the event here.