FOIA News: Fastest & slowest agencies of FY 2021

According to annual data available on FOIA.gov, the following five agencies reported the highest median number of days to process simple, perfected requests in fiscal year 2021:

1. National Archives and Records Administration: 179 days

2. United States Institute of Peace: 173 days

3. Office of Management and Budget: 170 days

4. Advisory Council of Historic Preservation: 106 days

5. U..S Agency for Global Media: 99 days

Seven agencies reported median response times of one (1) day in FY 2021 for simple, perfected requests:

1. Department of Agriculture

2. Harry S. Truman Scholarship Foundation

3. Administrative Conference of the United States

4. Federal Mine Safety and Health Review Commission

5. Gulf Coast Ecosystem Restoration Council

6. Office of the Director of National Intelligence

7. Office of Navajo and Hopi Indian Relocation

Court opinions issued Mar. 25, 2022

Sanders v. FBI (D.D.C.) -- ruling that FBI properly relied on Exemption 7(E) in refusing to confirm or deny existence of records concerning an initiative of the United Kingdom’s National Crime Agency to tackle child sexual exploitation.

Brown v. FBI (D. Or. 2022) -- finding that FBI properly relied on Exemptions 6 and 7(C) in refusing to confirm or deny existence of records concerning witness to 2015 San Bernardino terrorist attack and declining to credit plaintiff’s allegation that shooting was episode of government-sponsored terrorism.

Cayuga Nation v. U.S. Dep't of the Interior (D.D.C.) -- concluding that Bureau of Indian Affairs failed to perform reasonable search for records concerning agency’s 2020 visit to plaintiff’s reservation; (2) BIA failed to justify withholding certain redacted portions of a “trip report” pursuant to Exemption 5’s deliberative process, attorney work-product, or attorney-client privileges; and (3) with limited exceptions, BIA properly withheld portions of a “briefing report” pursuant to the attorney-client privilege and Exemptions 7(C) and 7(D), but it failed to justify its deliberative process privilege claims.

Summaries of all published opinions issued since April 2015 are available here.

FOIA News: Analysis of AG Garland's FOIA memo

Unpacking the New FOIA Memo

By Adira Levine, Yale J. on Reg., Mar. 24. 2022

This Sunshine Week brought much awaited Freedom of Information Act (FOIA) guidance from the Biden administration. On March 15, Attorney General (AG) Merrick Garland issued a FOIA memorandum directed to the heads of executive departments and agencies. The four-page memo announces Department of Justice (DOJ) guidelines established for the administration of FOIA. Its issuance was anticipated in light of historical precedent and sought after by transparency groups. In the memo, AG Garland focuses on four areas: the presumption of openness, proactive disclosures, removing access barriers and reducing request backlogs, and ensuring fairness and effectiveness in the FOIA process.

Read more here.

Court opinions issued Mar. 23, 2022

Cannady v. EOUSA (D.D.C.) -- holding that agency properly invoked Exemption 7(C) to withhold records concerning plaintiff’s criminal co-defendant, specifically inventories of items seized from co-defendant and notes of interviews between the FBI and co-defendant.

Gun Owners of Am. v. FBI (D.D.C.) -- ruling that: (1) FBI properly denied two requests as unreasonably described because plaintiff’s first request embedded “a fundamental uncertainty about whose communications [were] requested,” and its second request sought “all documents related to a certain question without providing further limitations or providing the FBI with a basis to narrow its search”; and (2) plaintiff’s remaining request was reasonably described “despite using the word ‘involving’ due to its inclusion of a discrete state agency whose communications are requested, specific search terms, explicit temporal parameters, and sufficient basis for the agency to narrow which custodians it must search to find responsive records.”

Summaries of all published opinions issued since April 2015 are available here.

FOIA News: Reporters Committee analyzes FOIA decisions of SCOTUS nominee

Reporters Committee reviews Judge Ketanji Brown Jackson’s record on First Amendment, Freedom of Information Act cases

Judge Jackson authored dozens of FOIA-related opinions while serving on the U.S. District Court for the District of Columbia.

Reporters Committee for Freedom of the Press, Mar. 21, 2022

On Feb. 25, President Joe Biden nominated Judge Ketanji Brown Jackson to fill the U.S. Supreme Court seat of retiring Justice Stephen Breyer. In this report, the Reporters Committee surveys Judge Jackson’s decisions in First Amendment and Freedom of Information Act cases from her tenure on the U.S. District Court for the District of Columbia. Although Judge Jackson was appointed to the U.S. Court of Appeals for the D.C. Circuit in 2021, none of the opinions she authored for that court pertains to issues affecting journalists.

Perhaps most noteworthy to journalists is Judge Jackson’s extensive judicial record on FOIA. She has authored dozens of FOIA-related opinions while serving on the district court from 2013 through 2021. In the analysis below, the Reporters Committee has concluded that Judge Jackson’s FOIA rulings demonstrate a deference to agency exemption claims, especially in the national security context, but a willingness to deny an agency summary judgment where government officials failed to provide sufficient evidence to keep records hidden from the public. Her record also reveals a willingness to rule in favor of record requesters on non-exemption issues pertaining to the sufficiency of an agency’s search for records and record fee disputes.

Read more here.

Court opinion issued Mar. 22, 2022

Castro v. IRS (D.D.C.) -- concluding that IRS performed reasonable search for records concerning plaintiff’s status as Enrolled Agent and that it properly withheld records pursuant to Exemption 7(A) and Exemption 3 in conjunction with 26 U.S.C. § 6103(a), (b), (e)(7).

Summaries of all published opinions issued since April 2015 are available here.

Court opinion issued Mar. 21, 2022

Ward v. DOJ (N.D. Tex.) -- dismissing case as moot because agency processed all records responsive to plaintiff’s request concerning his criminal case and none of plaintiff’s pleadings challenged the substance of agency’s response.

Summaries of all published opinions issued since April 2015 are available here.

FOIA News: EXIM Bank to Update FOIA Regulations

The Export-Import Bank of the United States (EXIM) is publishing for comment proposed revisions to its regulations under the Freedom of Information Act (FOIA). The revisions are intended to incorporate amendments to the FOIA under the FOIA Improvement Act of 2016, developments in the case law, and changes in Federal and EXIM policies. The proposed revisions are also intended to clarify procedural requirements. The proposed revisions occur throughout the FOIA regulations and are predominantly procedural in nature.

Comments should be received by April 21, 2022..

Read more here.

Court opinions issued March 18, 2022

Washington v. GSA (W.D. Wash.) -- finding that: (1) plaintiff failed to properly allege a pattern-or-practice claim; (2) agency’s delay in providing a final determination was not “egregious,” but its failure to “promptly” release records warranted an expedited production schedule; (3) plaintiff’s challenges to the agency's exemption claims were premature because agency had not completed its productions; and (4) at agency’s suggestion, ordering agency to provide plaintiff with a Vaughn Index within ten days of the release of all remaining records.

Washington v. OMB (W.D. Wash.) -- finding that: (1) plaintiff failed to properly allege a pattern-or-practice claim; (2) agency’s delay in providing a final determination was not “egregious,” but its failure to “promptly” release records warranted an expedited production schedule; (3) plaintiff’s challenges to the agency's exemption claims were premature because agency had not completed its productions; and (4) at agency’s suggestion, ordering agency to provide plaintiff with a Vaughn Index within ten days of the release of all remaining records.

Washington v. NARA (W.D. Wash.) -- finding that: (1) plaintiff failed to properly allege a pattern-or-practice claim; (2) agency’s delay in providing a final determination was not “egregious,” but its failure to “promptly” release records warranted an expedited production schedule; (3) plaintiff’s challenges to the agency's exemption claims were premature because agency had not completed its productions; and (4) at agency’s suggestion, ordering agency to provide plaintiff with a Vaughn Index within ten days of the release of all remaining records.

Summaries of all published opinions issued since April 2015 are available here.

FOIA News: DHS Sec'y acknowledges Sunshine Week

Recognizing Sunshine Week

DHS, News Blog, Mar. 18, 2022

Sunshine Week is a moment to recognize one of the hallmarks of good government: an institution’s openness and transparency with respect to the work we perform and how we perform it. This fundamental principle speaks to any organization’s integrity and helps build trust between our government and the communities we serve.

As we carry out our critical homeland security missions, our Department is firmly committed to upholding the core ideal of accountability to the public while remaining guardians of people’s safety and security.

Read more here.