FOIA News: More quarterly backlog data

By popular demand, here is a rundown of how additional cabinet agencies have been managing their request backlogs since the end of fiscal year 2021.

• Agriculture: 2081 requests (FY21) to 2334 (FY22, 2nd qtr.), a 12.1 percent increase

• Commerce: 773 requests (FY21) to 925 (FY22, 2nd qtr.), a 19.6 percent increase

• Energy: 808 requests (FY21) to 773 (FY22, 1st qtr.), a 4.3 percent decrease

• Health & Human Serv.: 9955 requests (FY21) to 11293 (FY22, 2nd qtr.), a 13.4 percent increase

• Housing & Urban Development: 808 requests (FY21) to 808 (FY22, 2nd qtr.), no change

• Interior: 4484 requests (FY21) to 4540 (FY22, 2nd qtr.), a 1.2 percent increase

• Labor: 1216 requests (FY21) to 1287 (FY22, 1st qtr.), a 5.8 percent increase

• Transportation: 4811 requests (FY21) to 5294 (FY22, 2nd qtr.), a 10 percent increase.

• Treasury: 2280 requests (FY21) to 2618 (FY22, 2nd qtr.), a 14.8 percent increase

FOIA News: ICYMI, OIP updates the FOIA Guide

On June 3, 2022, the Office of Information Policy posted an updated version of the Exclusions section of the Guide to the Freedom of Information Act.

When reached for comment, a DOJ spokesperson stated that OIP had conducted a search and found no evidence of any changes.

FOIA News: Request backlogs climbing at DHS and DOJ; steadier at DOD

The FOIA request backlog of the Department of Homeland Security, which receives the most requests of any federal agency, increased by 89 percent—from 25,102 requests to 47, 511— between September 30, 2022, and December 31, 2021, according to quarterly data posted on FOIA.gov. The department’s data has not yet been posted for the second quarter of fiscal year 2022 ending on March 31, 2022.

At the Department of Justice, which received the second highest number of requests in FY 2021, the request backlog climbed nearly 22 percent—from 49,959 requests o 60,877, between September 30, 2021, and March 31, 2022.

The request backlog is increasing at a slower pace at Department of Defense, the third most popular agency for requesters in FY 2021. Specifically, DOD’s request backlog increased by 6.7 percent—from 17,597 requests to 18,781—between September 30, 2021, and March 31, 2022.

FOIA News: Export-Import Bank amends FOIA regulations

The Export-Import Bank of the United States issued a final rule in the Federal Register that amends its FOIA regulations. A proposed rule was published in March of this year. The effective date of the final rule is August 10, 2022.

Court opinions issued July 8, 2022

Behar v. DHS (2d Cir.) -- reversing district court’s decision and holding that: (1) records obtained by the Secret Service from Donald Trump’s presidential campaign and transition were not “agency records” because agency did not control them; and (2) even if disputed records qualified as agency records, they were protected from disclosure under Exemption 7(C).

O'Brien v. DOJ (E.D. Pa.) -- determining that FBI properly withheld records concerning plaintiff’s co-defendant pursuant to Exemptions 3, 6, 7(A), 7(C), 7(D), and 7(E).

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

Court opinions issued July 7, 2022

Hall v. CIA (D.D.C.) -- in case litigated for 18 years, deciding “final issue” that agency performed adequate search of its operational files for records concerning Vietnam War prisoners of war.

Hughes v. DOJ (D.D.C.) -- determining that: (1) Executive Office for U.S. Attorneys conducted adequate search for records concerning plaintiff, (2) EOUSA improperly treated records related to two defendants in plaintiff’s criminal case as non-responsive, and agency needed to clarify whether it possessed a sealed court filing that it treated as non-responsive; (3) EOUSA properly withheld records pursuant to Exemption 5’s attorney work-product privilege; (4) EOUSA and FBI properly relied on Exemptions 6 and 7(C) to withhold records concerning various third parties, but ordering each agency to release records concerning plaintiff’s codefendants; and (5) plaintiff was eligible and entitled to recover his litigation costs of $350.

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

FOIA News: OIP seeks experienced FOIA attorney

The Department of Justice’s Office of Information Policy is hiring an experienced attorney to handle FOIA lawsuits filed against DOJ. The application deadline is August 8, 2022. See more details here.

FOIA News: If you give a hoot . . .

A panel discussion on using FOIA to help animals will be held on July 13, 2022. See details here.

FOIA News: Discussion of estimated completion dates

Five ways to improve FOIA estimated completion dates

By Abigail Russ, Fed. News Network, July 5, 2022

As backlogs for Freedom of Information Act requests grew during the pandemic, some agencies found success limiting processing times. Now, those agencies are offering best practices to improve the public information request process and make it easier for records custodians to calculate estimated dates of completion (EDCs). 

FOIA, which celebrated its 56th anniversary on July 4, mandates agencies provide EDCs on all public information requests, although many agencies do not provide them, Alina Semo, director of the Office of Government Information Services (OGIS), said.

The agency’s annual meeting on June 29 comes after OGIS issued their annual Report for Fiscal Year 2021. OGIS is the congressionally mandated agency in charge of reviewing FOIA policies, procedures, compliance and improvement.

Read more here.

Court opinions issued June 30 & July 1, 2022

July 1, 2022

Conn. Fair Housing. Ctr. v. HUD (D. Conn.) -- ruling that plaintiff was ineligible for costs and attorney’s fees because court played no role in settlement reached between the parties.

June 30, 2022

Am. Civil Liberties Union of Me. Found. v. ICE (D. Me.) (magistrate’s recommendation) -- following in camera review of records concerning asylum applications, finding that ICE properly withheld some but not all records pursuant to Exemption 7(E).

Rutila v. DOT (N.D. Tex.) -- on remand from Fifth Circuit, finding that: (1) FAA properly tolled its response to one of plaintiff’s requests concerning air traffic controller training and therefore plaintiff’s failure to pay estimated fees precluded his claim; (2) FAA performed reasonable search for certain emails; (3) five of plaintiff’s requests concerning agency employee were either not reasonably described or improperly required creation of new records; and (4) agency conducted adequate search for air traffic training manual.

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