FOIA News: OGIS annual public meeting next week

The Office of Government Information Services will hold its annual public meeting on Wednesday, June 29, 2022. Registration information and meeting materials are available here.

FOIA News: Are Non-Profit Organizations’ Records Requests Ruining FOIA?

Are Non-Profit Organizations’ Records Requests Ruining FOIA?

By Bernard Bell, Yale J. on Reg., June 19, 2022

Court dockets in this district overflow with Freedom of Information Act (FOIA) matters.  Many of those cases seek reams of records, requiring massive efforts from defendant agencies. . . . This is the system Congress hath wrought. And which this Court must dutifully implement.”

American Center for Law and Justice v. DHS, Dkt. No. 21-1364 (D.D.C. Nov. 10, 2021)(McFadden, J.).

In American Center for Law and Justice v. Department of Homeland Security, — F. Supp. 3d —, 2021 WL 5231939 (D.D.C. Nov. 10, 2021), a seemingly run-of-the-mill Freedom of Information Act (“FOIA”) case, D.C. District Judge Trevor McFadden offered a provocative assessment of FOIA.  “Mismatched incentives,” he observed, encourage nonprofit FOIA requesters to make excessively broad requests and bring excessive litigation.  And given the advent of email, he continued, the short time period agencies have to provide records is hopelessly out of date.  Judge McFadden’s critique may be echoed by other judges, the Department of Justice, or members of Congress.

Read more here.

Court opinions issued June 15-16, 2022

June 16, 2022

Vidal-Martinez v. ICE (N.D. Ill.) -- concluding after in camera review that agency properly invoked Exemptions 5, 6, and 7(C) to withhold records concerning plaintiff’s detention and rejecting plaintiff’s contention that alleged government impropriety undermined its withholding claims.

June 15, 2022

Ecological Rights Found. v. EPA (N.D. Cal.) -- finding that EPA properly relied on deliberative process, attorney-client, and attorney work-product privileges to withhold eight categories of disputed records concerning a 2019 Department of Justice memo concerning EPA’s use of “Supplemental Environmental Projects” in settlement agreements.

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

FOIA News: More on proposed bill to ban foreign FOIA requesters

FOIA Reform We Don’t Need: Blocking Foreigners From Using FOIA

By Mike Masnick Techdirt, June 15, 2022

The US Freedom of Information Act (FOIA) system needs plenty of useful reforms to actually work correctly and properly. Despite limited time frames in which the government is required to provide information, they often take years. They regularly redact stuff they shouldn’t. Or refuse to hand over documents they are required to. Generally speaking, the government is not a fan of the kind of transparency that is not just required under the law, but necessary for a functioning government that the public trusts.

Of course, rather than fix any of that… we now have Senators Marco Rubio and Tom Cotton, both of whom have been overshadowed by the bigger, louder, more ridiculous culture warriors in their party, planning to limit FOIA requests only to American citizens, permanent residents and US companies.

Read more here.

FOIA News: FOIA roundtable with the Consumer Product Safety Commission

On June 28, 2022, the Consumer Product Safety Commission’s FOIA staff will hold a public roundtable discussion “to explore common issues arising with FOIA requests. This roundtable will focus on the CPSC FOIA Office’s intake process, including the method for submission, the scope of the request, the agency’s subject matter jurisdiction, fee categories, requests for expedited processing, essential elements of a perfected FOIA request, clarification process, timing, and how requests can be formulated to facilitate the Office’s searches for responsive records.”

More details available here.

Commentary: Making FOIA great again?

As we reported yesterday, a bill expected to be introduced by Senators Marco Rubio and Tom Cotton would, among other things, prohibit federal agencies from disclosing records to certain foreign citizens and entities under the Freedom of Information Act. The FOIA Advisor staff—Ryan Mulvey (RM), Kevin Schmidt (KS), and Allan Blutstein (AB)—weighs in on the proposed amendments below.

KS: I’m not sold on the national security justification for the bill. FOIA exemptions exist to make sure the most sensitive government information stays secret regardless of the status of the requester. And speaking of that, how is a FOIA officer going to confirm the citizenship of the requester? There’s no information about that in the draft bill. FOIA officers have enough to deal with already. They don’t need to try to find out the citizenship status of every requester.

Sen. Rubio says the fact that foreign nationals can request records under FOIA is a “glaring loophole.” Are agencies facing a glut of FOIA requests from foreign nationals outside of the immigration space? I have no idea, but I’d be interested if anyone has seen numbers. A more reasonable argument in my mind would be that we shouldn’t use scarce resources on requests from foreign nationals, but that’s not the leading argument being made.

RM: I agree that it would be interesting to see what percentage of requesters are foreign nationals (or foreign governments or foreign business entities), assuming such information is even collected and verified by agencies. I should think the percentage is rather low, and lower still once one brackets out people seeking immigration-related records, who are still permissible requesters in the Rubio-Cotton bill.

I also take issue with the “glaring loophole” characterization of FOIA. I’m not sure the legislative history, or attendant caselaw, supports Senator Rubio’s claim. There are already judicially created exceptions to the “any person” standard, but I’ve never seen language suggesting Congress accidentally gave foreigners the right to request records. If anything, the fact Congress has already amended FOIA to prohibit requests from foreign government entities to intelligence community agencies—see 5 U.S.C. § 552(a)(3)(E)—suggests it knows how to grapple with the sort of national security concerns raised by Senator Cotton.

Turning to the other substantive proposals in the bill, I can only conclude this is a political stunt rather than a serious attempt at reform. We’re offered a bunch of (bad) solutions in search of non-existent problems. I note, for example, the vagueness of the provision criminalizing what I assume to be proxy requests on behalf of prohibited requesters. Another, more troubling provision would give an agency the discretion to “determine the manner in which a request is fulfilled . . . if [it] has a reasonable belief that fulfilling the request in the manner requested by the requester” would “result in the exposure of [non-responsive] material” or “pose[] a material security risk” to the federal government. What is this? Is this an exclusion? An exemption? What does it mean to “fulfill” a request? And why is non-responsive material, as such, a problem? How will that first sub-provision impinge on the open question of what constitutes a “record”? The latter clause touching on “material security risks” seems ambiguous. Do Exemptions 1 and 3 not already provide enough protection to keep sensitive, national-security information secret?

Finally, I have deep reservations about the proposed tenth exemption for materials “susceptible to reverse engineering.” This strikes me as a sort of “catchall” that draws on mosaic theory and the pre-Milner scope of Exemption 2. I have a hard time imaging what the exemption would cover that couldn’t already be withheld under another existing exemption. I won’t even get into the problem of understanding the “interests of the United States” in the proposed balancing test, and the implications for the foreseeable harm standard.

AB: Your points are well taken and I am confident this effort will fail. I am not offended by—but do not think it necessary to enact—a FOIA citizenship requirement. Our neighbor to the North limits access to agency records to Canadian citizens and permanent residents; however, they do not criminalize or disallow proxy requests. Additionally, a number of U.S. states have citizenship or residency requirements, including Alabama, Arkansas, Delaware, Kentucky, South Carolina, Tennessee, and Virginia, which the U.S. Supreme Court has blessed. I agree with you, Kevin, that enforcement would be logistically challenging, but where there’s a will there’s a way? The government has managed to create a “PreCheck” travel program with 10 million members; it should be able to figure out a screening process for considerably fewer FOIA requesters.

As for the remaining provisions, I have long maintained that agencies should be able to “scope out” information that requesters have not asked for. Perhaps the language here needs to be tweaked, but I support the overall objective. I agree with you, Ryan, that the exemption proposed to protect certain technology appears to be unnecessary. Section 1.4(e) of Executive Order 13,526 already allows agencies to classify “scientific, technological, or economic matters relating to the national security.”

FOIA News: Senate bill would ban foreign FOIAs

Senate bill would ban foreign FOIAs

By Lachlan Markay, Axios, June 14, 2022

Republican members of Congress are introducing legislation to bar foreign nationals and entities from obtaining government records under the Freedom of Information Act, Axios has learned.

Why it matters: The bill's sponsors say it would prevent potentially adversarial foreign actors from accessing sensitive government records. FOIA lawyers are writing it off as a solution in search of a problem.

The details: The bill is set to be introduced this week by Sens. Marco Rubio (R-Fla) and Tom Cotton (R-Ark.).

Read more here.

Copy of draft bill here.

Court opinion issued June 10, 2022

Avila v. U.S. Dep't of State (D.D.C.) -- holding that: (1) agency’s use of plaintiff’s full name as sole search term was too narrow to uncover all records responsive to plaintiff’s request for records concerning a February 2011 attack involving plaintiff; (2) agency adequately justified withholding some but not all documents pursuant to Exemption 1, and it provided inadequate description for one document withheld under Exemption 3 in conjunction with the National Security Act; (3) agency properly relied on Exemption 5’s deliberative process privilege to withhold draft documents, all but one document constituting outward-facing deliberations, and all but two miscellaneous records; and (4) agency properly withheld emails reflecting policy and legal advice pursuant to the attorney-client privilege.

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

FOIA News: Clock ticking on DOJ summary of 2021 annual FOIA reports

When will the Department of Justice’s Office of Information Privacy release its summary of annual FOIA data for fiscal year 2021? We don’t know. But probably soon. Since 2011, OIP has released its annual summary no later than June nine times. The two outliers involved the FY 2013 summary, which was issued on July 18, 2014, and its FY 2011 summary, which was issued on September 6, 2012.

In the meantime, the raw data is available on FOIA.gov. A summary of the data is available in a FOIA Advisor post dated March 3, 2022.

Court opinion issued June 9, 2022

Deep Sea Fishermen's Union of Pac. v. U.S. Dep't of Commerce (W.D. Wash.) -- concluding that: (1) agency performed adequate search for personal text messages related to fishing observer program on or after September 20, 2017, when a new agency policy required such messages to be forwarded to agency email accounts; (2) agency’s search for all other records was inadequate, in part because agency neglected to explain its search process; and (3) agency’s “withholding log” and declaration were sufficiently detailed.

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