FOIA News: CATO gathers FOIA critics to air grievances

The CATO Institute will host an online discussion entitled FOIA and Government Transparency: A Report Card on September 22, 2022, See details here.

FOIA News: OIP issues summary/assessment of CFO reports

SUMMARY AND ASSESSMENT OF AGENCY 2022 CFO REPORTS ISSUED

By DOJ/OIP, FOIA Post, Aug. 30, 2022

Today the Office of Information Policy (OIP) is pleased to release its summary and assessment of agencies’ 2022 Chief FOIA Officer (CFO) Reports.  OIP’s 2022 summary and assessment focuses on steps agencies have taken to improve FOIA administration in five key areas:

• Applying a Presumption of Openness,

• Ensuring Agencies Have Effective Systems for Responding to Requests,

• Increasing Proactive Disclosures,

• Greater Utilization of Technology in FOIA Administration, and

• Improving Timeliness and Reducing Backlogs.

This past March marked the thirteenth year that agency CFOs submitted these reports to the Department of Justice. 

Read more here.

FOIA News: Monkey business at the FBI?

The Monkees’ Micky Dolenz Would Like a Word With the FBI

The group's last surviving member is suing the FBI after they failed to hand over band's J. Edgar Hoover-era FBI file

By Andy Green, Rolling Stone, Aug. 30, 2022

WHEN THE MONKEES launched their inaugural tour in 1967, they played to throngs of screaming teenagers – and at least one FBI informant. “During the concert, subliminal messages were depicted on the screen which, in the opinion of [informant’s name redacted], constituted ‘left wing intervention of a political nature,'” reads a document in the Monkees FBI file. “These messages and pictures were flashed of riots, in Berkley, anti-U.S. messages on the war in Vietnam, racial riots in Selma, Alabama, and similar messages which had unfavorable response[s] from the audience.”

This tiny portion of the band’s FBI file was released to the public a little over a decade ago, and now Micky Dolenz, the group’s sole surviving member, has filed a lawsuit against the FBI (See the full suit below). The 77-year-old musician is hoping to see the rest of the file after failing to get his hands on it via a Freedom of Information Act request. “This lawsuit is designed to obtain any records the FBI created and/or possesses on the Monkees as well as its individual members,” reads the suit. “Mr. Dolenz has exhausted all necessary required administrative remedies with respect to his [Freedom of Information Act/Privacy Act] request.”

Read more here.

Court opinion issued August 29, 2022

Wine v. U.S. Dep’t of the Interior (D.D.C.) -- dismissing plaintiff’s FOIA claim because he failed to administratively appeal from agency’s decision to partially redact email about law enforcement’s entry onto plaintiff’s property.

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

ICYMI, OGIS still interested in "still interested" letters

OGIS Is Yet Again Interested in “Still Interested” Letters

By Office of Gov’t Info. Serv., The FOIA Ombudsman, Aug. 22, 2022

As federal agencies approach the end of fiscal year 2022 in September, we know many are aiming to close old FOIA requests and reduce their FOIA backlogs. Some have begun to send requesters “still interested” letters to ensure that the information in a FOIA request is still being sought by the requester from the agency.

The Office of Information Policy (OIP) guidance on the issue advises agencies about “being mindful” in regard to the timelines for requesters to respond and indicate their level of interest. OIP updated this guidance in 2015 and included a series of procedures that agencies should use when sending “still interested” letters.

Read more here.

Q&A: Would a politician lie?

Q. I know Congress is exempt from FOIA, but is there any work-around to request information about a congressperson's casework with constituents out in the community? For example, if a congressperson's website says they have attended 1,000 events in their district, is there any way to FOIA a list of those events with locations and dates? Or if the congressperson says his/her staff has successfully done casework for 5,000 people (i.e. helping them connect with federal agencies, etc.), can you request a list summarizing the general nature of those cases? Or, is none of this FOIA-able because of the congressional exemption?

A. The lists you speak of would likely be maintained—if at all—only by the congressperson’s office, which as you recognized is not subject to FOIA requests. You could try to piece together constituent referrals by sending FOIA requests to federal, state, and local agencies, but that would be a time-consuming project. I try to budget 12 months or more for federal FOIA requests and am no longer submitting requests for the 2022 cycle. In my opinion, a better approach would be to arrange for a reporter ask the congressperson’s office to voluntarily provide the desired lists.

FOIA News: E-discovery tools for FOIA

How Tech-Assisted Review is Transforming FOIA

Government is beginning to adopt AI tools to expedite its obligation of records transparency.

By Katherine MacPhail, Gov’t CIO Mag., Aug. 24, 2022

The Freedom of Information Act (FOIA) process has frequently been plagued with delays, but the massive surge in data production over the past decade means that this problem is only growing. Tackling all of the outstanding FOIA requests manually is not simply burdensome — it is nigh impossible.  

“None of us have time to read a petabyte of data in our lifetime,” said John Facciola, retired U.S. magistrate judge and Georgetown adjunct professor of law, during a Digital Government Institute 930gov panel Tuesday.

That’s where AI comes in. Agencies are turning to technology assisted review tools that were originally developed for the eDiscovery process.

Read more here.

Court opinion issued Aug. 25, 2022

Kendrick v. DEA (D.D.C.) -- concluding that agency did not adequately describe how it searched for certain records concerning plaintiff, who was sentenced to “life imprisonment plus 30 years” for his involvement in a “drug ring,” and that agency properly withheld records pursuant to Exemptions 7(C) and 7(E).

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

FOIA News: Second Circuit limits scope of Exemption 4

Court Sides with Clinics on Freedom of Information Act Exemptions

By Yale Law Sch., YLS Today, Aug. 24, 2022

In a precedent-setting case, a court agreed with three First Amendment clinics that a Freedom of Information Act (FOIA) exemption for confidential commercial information is not meant to protect confidentiality for the sake of confidentiality.

The Media Freedom & Information Access Clinic (MFIA) at Yale Law School, working with clinics at Cornell Law School and the SMU Dedman School of Law, brought the case.

Seife v. FDA concerns a journalist who requested clinical trial data from the Food and Drug Administration related to its approval of a drug. The FDA held that it could withhold the documents, which the drug maker deemed confidential, under an exemption for privileged business information. Now, an appeals court — the first to consider a standard imposed in 2016 — has ruled that agencies cannot withhold such information under this exemption simply because the information is confidential.  

Read more here.

FOIA News: DOJ gives up FOIA fight, releases advisory memo re: Trump

Justice Department releases Mueller-era memo on Trump prosecution

Two top aides to then-Attorney General William Barr said Trump’s acts wouldn’t have merited obstruction charges even if he were not immune as president.

By Josh Gerstein & Kyle Cheney, Politico, Aug. 24, 2022

The Justice Department has released a long-sought legal memo arguing that then-President Donald Trump’s actions during special counsel Robert Mueller’s Trump-Russia investigation did not warrant prosecution for obstruction of justice, even if a president was susceptible to criminal charges while in office.

In the nine-page memo disclosed Wednesday, two of the most senior officials in the Justice Department advised then-Attorney General William Barr that Trump’s threats to fire Mueller and his various public and private outbursts against witnesses he viewed as hostile or unhelpful to him didn’t amount to the sort of case prosecutors would bring under their established standards.

Read more here.