Court opinions issued May 12, 2022

Transgender Law Ctr. v. Immigration & Customs Enf't (9th Cir.) -- reversing district court and finding that: (1) DHS agencies failed to show “beyond material doubt” that they conducted adequate search for records concerning asylum-seeker's death in federal custody; (2) government’s Vaughn Indices failed to provide sufficient detail to permit review of withholdings; (3) court erred in treating all drafts as necessarily covered by Exemption 5’s deliberative process privilege; (4) agencies improperly withheld email domain addresses of agency employees under Exemptions 6 and 7(C); (5) agencies failed to distinguish whether records withheld under Exemption 7(E) were law enforcement techniques and procedure or guidelines; and (6) agencies failed to provide sufficient detail concerning its segregability analysis.

Synopsys, Inc. v. DOL (9th Cir.) (unpublished) -- affirming district court’s decisions that: (1) company untimely moved to intervene after summary judgment was granted to FOIA requester seeking access to company’s employment data (EEO-1 reports); and (2) DOL was entitled to summary judgment in company’s reverse-FOIA action, finding that APA claim on Exemption 4 grounds was precluded by Supreme Court precedent.

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

FOIA News: Veterans Affairs using tech to reduce FOIA delays

VA Increased FOIA Processing Thanks to Automation

The agency is using capacities like RPA to expedite FOIA review, decreasing the time between request and document release.

Adam Patterson & Amy Kluber, GovCIO Media & Research, May 11, 2022

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In fiscal year 2021, the agency received more FOIA requests than it did in fiscal year 2019 — from 21,336 to 27,762. From a preliminary glance at the full list of these requests, one can see many of the requests received in 2021 pertained to things like COVID debt relief data, vaccination rates and other matters that were pertinent to the 2020 COVID-19 pandemic.

The amount of requests it was able to process dipped in fiscal 2020. This is in part due to the disruption in working location, the need for increased remote access to systems and the influx of paper mail. Plus, like many U.S. hospitals, the agency had to handle unprecedented numbers of patients sick with COVID-19 and stand up a nationwide vaccination effort quickly.

The number of requests the agency processed, however, rose again in fiscal 2021 and surpassed the amount processed before the pandemic. Part of this is thanks to its FOIA office introducing more automation into its workflows.

Read more here.

Court opinion issued May 9, 2022

Emuwa v. DHS (D.D.C.) -- concluding on remand that D.C. Circuit’s foreseeable harm opinion in Reporters Committee for Freedom of the Press v. FBI did not warrant revision of court’s initial decision granting summary judgment to government on Exemption 5 grounds.

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

Court opinion issued May 5, 2022

Anthony v. Fed. Bureau of Prisons (W.D. La.) -- holding that venue was improper because plaintiff’s incarceration in Louisiana did not confer residency in that state, requiring case to be transferred to the District of Columbia in absence of evidence of plaintiff’s residency elsewhere.

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

FOIA News: FOIA discussion at the National Press Club

Open records: Everything you need to know before filing your first FOIA request

Nat’l Press Club Journalism Inst.., May 4, 2022

Public records belong to the public. So where do we get started tracking them down

Join the National Press Club Journalism Institute for "My First FOIA: Open records are for everyone" to learn what government records you have a right to and how to request them. Whether you're a journalist, student, parent, community activist, teacher, business owner, or taxpayer, you will learn how to request public records that can help you in your personal and professional life.

Registration is open for this program, which will take place on Friday, May 20 from 11:30 a.m. to 12:30 p.m. ET.

Read more here.

FOIA News: FOIA Advisory Committee to meet on May 5

FOIA Advisory Committee Meets on May 5

OGIS, FOIA Ombudsman Blog, Apr. 28, 2022

The penultimate meeting of the 2020-2022 term of the Freedom of Information Act (FOIA) Advisory Committee is Thursday, May 5, from 10 a.m. to 1 p.m. EDT. This virtual meeting is open to the public and registration is required for those wishing to make oral public comments. Please register here by 11:59 p.m. ET on Tuesday, May 3, 2022, to receive an email with instructions for accessing the meeting via WebEx. We also will livestream the meeting on the National Archives YouTube channel (with a slight transmission delay).

Read more here.

FOIA News: AmeriCorps to amend FOIA regulations

The Corporation for National and Community Service (operating as AmeriCorps) has issued a proposed rule revising its FOIA regulations “to reflect changes made in the FOIA Improvement Act of 2016 and to make the regulations more user friendly through plain language.” Public comments may be submitted through July 1, 2022.

Court opinions issued Apr. 28, 2022

Zirvi v. NIH (D.N.J.) -- concluding that: (1) multiple agencies properly relied on Exemption 4 to withhold records concerning a biotechnology company; (2) plaintiff’s belief that withheld documents would show existence of criminal conduct did not undermine exemptions or warrant discovery or in camera review; and (3) plaintiff was neither eligible nor entitled to costs.

Am. Civil Liberties Union v. Fed. Bureau of Prisons (D.D.C.) -- denying plaintiff’s motion to strike agency’s declaration in connection with plaintiff’s requests for COVID-19 data and cost and staffing data related to federal executions.

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

Court opinions issued Apr. 26, 2022

Nat’l Student Legal Def. Net. v. U.S. Dep’t of Educ. (D.D.C.) -- ruling that Department of Education performed adequate search for certain federal student aid-related records received from the Social Security Administration, notwithstanding department’s failure to locate two additional SSA records that the department was required by regulation to request from SSA annually.

100Reporters v. U.S. Dep’t of State (D.D.C.) — finding that: (1) Department failed to adequately search for reports to Congress concerning vetting of foreign security personnel; (2) Department properly withheld some, but not all, vetting records pursuant to Exemption 5’s deliberative process privilege and noting that agencies are not required to trace lineage of each draft document to ensure that it has not been adopted as agency’s final position; (3) Department failed to provide sufficient evidence to show that names of foreign security officials were protected under Exemptions 6 or 7(C); (4) Department properly withheld most, but not all, records pursuant to Exemption 7(E); and (5) Department failed to identify any authority that would authorize Court to order plaintiffs to return inadvertently released records, regardless of whether those records are protected under various exemptions, including Exemption 7(F).

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

FOIA News: Following lawsuit, Pentagon agrees to process requests from Stars & Stripes reporter

DOD agrees to give reporter public records through FOIA but not day in court

By Alison Bath, Stars & Stripes, Apr. 25, 2022

An airman files records in Port Orchard, Wash., March 9, 2022. The Defense Department in a recent court filing agreed to fulfill 15 Freedom of Information Act requests it previously denied to a Stars and Stripes journalist. (Jason Kriess/U.S. Army)

The Defense Department has agreed to fulfill 15 Freedom of Information Act requests it previously denied to a journalist because he worked for a military publication.

In a court filing last week, the DOD, the Department of the Navy, the Marine Corps and U.S. Central Command said they will no longer refuse Stars and Stripes reporter Chad Garland’s requests for public records made through FOIA requests filed from August 2020 through August 2021.

The department did not say why it suddenly changed course in the filing Wednesday, which came about two weeks after its lawyers filed an answer to Garland’s lawsuit and appeared ready to litigate.

Read more here.