FOIA News: CNCS finalizes updates to FOIA regulations

The Corporation for National and Community Service has completed the process of amending its FOIA regulations, issuing a final rule appearing in the Federal Register on September 9, 2022. The amendments were made “to reflect changes made in the FOIA Improvement Act of 2016 and to make the regulations more user friendly through plain language.” This final rule takes effect on October 11, 2022.

FOIA News: Learning is fundamental, advises DOJ's Chief FOIA Officer

ASSOCIATE ATTORNEY GENERAL VANITA GUPTA HIGHLIGHTS IMPORTANCE OF FOIA TRAINING AND NEW E-LEARNING RESOURCES

By DOJ/OIP, FOIA Post, Sept. 8, 2022

Associate Attorney General Vanita Gupta, who also serves as the Department’s Chief FOIA Officer, recently issued a memorandum to agency Chief FOIA Officers and General Counsels emphasizing the importance of FOIA training, underscoring the Attorney General’s FOIA Guidelines issued earlier this year.  The memorandum highlights three new training modules that the Office of Information Policy (OIP) has made available to all agencies.   

Read more here.

Court opinions issued Sept. 7, 2022

Advancement Proj. v. DHS (D.D.C.) -- deciding that: (1) ICE properly invoked Exemption 5’s deliberative process privilege to withhold records pertaining to visa sanctions, but it failed to properly explain its segregability analysis; and (2) State Department properly withheld records on same subject pursuant to Exemption 7(E) and Exemption 5’s deliberative process privilege.

Judicial Watch v. U.S. Dep’t of State (D.D.C.) -- ruling that agency did not entirely justify its search for records concerning former U.N. Ambassador Samantha Power’s requests to “unmask” the identity of former National Security Advisor Lieutenant General Michael Flynn in intelligence reports.

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

Q&A: Hello from the other side

Q. When does an agency have to notify me of the tracking number assigned to my request? I know the agency can wait at least 10 days, but how long after that?

A. You are right that agencies need not assign tracking numbers to requests that will take 10 days or less to process. See 5 U.S.C. § 552(a)(7). The statute is silent, however, as to exactly when the agency must assign a request number and when it must notify the requester if a request will take longer than 10 days to process. I am not aware of a court opinion on point, nor has the Department of Justice pinpointed a deadline in any guidance.

Because an agency must provide a final determination (or seek an extension) within 20 business days, I assume that would be the latest date allowable by a court, if litigated. A number of agencies specify a time period in their regulations. The U.S. Department of Health and Human Services, for example, will “acknowledge all FOIA requests in writing within 10 working days after receipt by the appropriate office.” 45 C.F.R. § 5.24(a). And the General Services Administration, which participates in the FOIAonline system, assigns a tracking number immediately upon online receipt or no later than 2 business days. See 41 C.F.R. § 105-60.301. By contrast, the National Archives and Records Administration allows itself 20 business days to acknowledge requests. See 36 C.F.R. § 1250.26(a).

Court opinions issued Sept. 2, 2022

Kowal v. DOJ (D.D.C.) -- on third round of summary judgment, concluding that DEA properly relied on Exemption 7(E) to withhold portions of DEA’s Agents’ Manual.

Ctr. for Medical Progress v. HHS (D.D.C.) -- determining that: (1) agency properly invoked Exemption 4 to withhold five categories of disputed records pertaining to University of Pittsburgh’s fetal tissue-related grant application to NIH, and agency sufficiently demonstrated that disclosure would cause foreseeable harm; and (2) agency properly withheld records identifying university’s employees, third-party supporters, and clients pursuant to Exemption 6 due to potential violence and harassment.

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

FOIA News: FOIA Advisory Committee to meet twice in September

The federal Freedom of Information Act Advisory Committee will meet on Thursday, September 8, 2022, at 10:00 a.m., and again on Wednesday, September 14, 2022, at 10:00 a.m. The agendas and meeting materials are available here.

Court opinions issued Sept. 1, 2022

Munene v. Talebian (W.D. Wash.) -- denying award of attorneys’ fees and costs after concluding that plaintiffs failed to establish that lawsuit had “a substantial causative effect on EOIR's release of the requested documents.”

Buzzfeed Inc. v. DHS (D.D.C.) -- finding that ICE again failed to justify use of Exemption 5’s deliberative process privilege to redact two documents pertaining to alien “Risk Classification Assessments,” and granting ICE’s renewed summary judgment motion regarding searches and withholdings not in dispute.

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

FOIA News: Plaintiff seeks to accelerate Volkswagen suit

VW, DOJ Rip Bid To Rush Jones Day Emission Docs FOIA Row

By Linda Chiem, Law360, Sept. 2, 2022

The U. S. Department of Justice and Volkswagen AG have said that a Loyola Marymount University professor cannot shortcut California federal court proceedings to force the release of a confidential Jones Day report on the German automaker's internal investigation into the 2015 emissions-cheating scandal. The DOJ and Volkswagen filed separate briefs Thursday opposing Lawrence P. Kalbers' recent request to expedite proceedings in his Freedom of Information Act lawsuit seeking to get the DOJ to publicly release Jones Day's findings — which have been kept under wraps for years — on how the "clean diesel" emissions-cheating scandal took shape.

Read more here (accessible with free trial subscription).

FOIA News: SEC files SJM in "Crypto Conflict" case

SEC Seeks Early Win In FOIA Fight Over Crypto Conflict Docs

By Daniel Ducassi. Law360, Sept. 1, 2022

The Securities and Exchange Commission asked a Virginia federal judge on Wednesday to give it an early win in its records dispute with a watchdog group over documents that might reveal former high-ranking SEC officials' conflicts of interest associated with their oversight of cryptocurrency. The SEC said in a court filing that it has already given the group, Empower Oversight Whistleblowers & Research, all the documents it had originally asked for and which the commission could lawfully provide. The SEC argues that any withholding or redaction of documents was legally justified, and that its search process need not be perfect, just reasonably . . .

Read more here (accessible with free trial subscription).

Copy of Complaint here.

Court opinion issued Aug. 31, 2022

Dale v. DEA (D.D.C.) -- finding that agency performed adequate search for various records concerning plaintiff’s criminal case and that it properly withheld records pursuant to Exemptions 3, 7(C), 7(D), 7(E), and 7(F), which plaintiff did not dispute.

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