FOIA News: OIP issues FOIA-Privacy Act Guidance

OIP ISSUES GUIDANCE ON FOIA-PRIVACY ACT INTERFACE

DOJ/OIP, FOIA Post, Sept. 15, 2022

Today, the Office of Information Policy (OIP) published new guidance on the interface between the Freedom of Information Act (FOIA) and the Privacy Act.  This guidance provides practical insight for agency FOIA professionals who process access requests for Privacy Act records.  Both the Privacy Act and FOIA are long-established mechanisms for individuals to seek access to government records.  The Privacy Act and FOIA can overlap, and it is critical that FOIA professionals understand this interface to make disclosure determinations that provide requesters the full scope of access to which they are entitled under both statutes. 

Read more here.

FOIA News: FOIA Ruling Yields New Argument For Challenging Exemption 4

FOIA Ruling Yields New Argument For Challenging Exemption

By John McCarthy, Anuj Vohra, and Dan Wolff, Law360, Sept. 14, 2022

Last month, in Seife v. U.S. Food and Drug Administration, the U.S. Court of Appeals for the Second Circuit became the first appellate court to address a significant question regarding Exemption 4 left unanswered by the U.S. Supreme Court's 2019 FOIA decision in Food Marketing Institute v. Argus Leader Media.

Read more here (accessible with free trial subscription).

FOIA News: OIP Releases 2023 Chief FOIA Officer Report Guidelines

New 2023 Chief FOIA Officer Report Guidelines Now Available

Dep’t of Justice, Office of Info. Policy, Sept. 14, 2022

The FOIA requires agency Chief FOIA Officers to report to the Attorney General on their performance in implementing the law.  Accordingly, since 2009, the Department of Justice has directed agency Chief FOIA Officers to “review all aspects of their agencies’ FOIA administration” and to report annually to the Department of Justice on the efforts undertaken “to improve FOIA operations and facilitate information disclosure at their agencies.”  Every year, OIP provides specific guidance to agencies on the content and timing of agency Chief FOIA Officer Reports and today we have issued the guidelines for agency 2023 Chief FOIA Officer Reports. 

In their 2023 Chief FOIA Officer Reports, OIP requires agencies to report steps taken in five key areas of FOIA administration highlighted in the Attorney General’s 2022 FOIA Guidelines:

1. FOIA Leadership and Applying the Presumption of Openness,

2. Ensuring Fair and Effective FOIA Administration,

3. Proactive Disclosures,

4. Steps Taken to Greater Utilize Technology; and

5. Steps Taken to Remove Barriers to Access, Improve Timeliness in Responding to Requests, and Reduce Backlogs.

Read more here.

FOIA News: ATF prevails in case involving Hunter Biden's gun episode

Judge won't force disclosure of records on alleged episode with Hunter Biden's gun

The privacy interests of President Joe Biden's son trump a blogger's Freedom of Information Act suit, the federal court rules.

By Josh Gerstein, Politico, Sept. 13, 2022

A court has rejected a lawsuit seeking to force the public disclosure of federal records about a 2018 episode in which a gun belonging to President Joe Biden’s son Hunter was allegedly thrown in a trash can.

In a ruling Tuesday, U.S. District Court Judge Rudolph Contreras found that the public interest in the handling of any investigation by the Bureau of Alcohol, Tobacco, Firearms and Explosives into the episode was “significant,” but that the importance of Hunter Biden’s privacy as a private citizen outweighed the value of releasing any such records to the public.

Read more here.

Court opinion issued Sept. 13, 2022

Codrea v. ATF (D.D.C.) -- concluding that ATF properly relied on Exemption 7(C) in refusing to confirm or deny existence of agency’s involvement in alleged 2018 gun incident involving Hunter Biden; finding that public interest in agency’s handling of this matter was “significant,” but that it was outweighed by subject’s “remarkably strong” privacy interest.

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

FOIA News: Court upholds majority of EPA's revised FOIA regulations

EPA Beats Challenge to New Freedom of Information Act Process

By Samantha Hawkins, Bloomberg Law, Sept. 13, 2022

• Agency made changes to streamline FOIA requests

• Changes won’t slow FOIA process, judge says

The Environmental Protection Agency defeated claims brought over changes it made to its internal policies for handling Freedom of Information Act requests, after a federal judge in Washington, D.C. ruled that the changes wouldn’t slow down requests or subject them to political interference.

In 2019, the agency removed the option of submitting FOIA requests direct to regional offices of the EPA, authorized the EPA administrator to make final FOIA determinations, authorized agency officials to withhold a portion of a record on the basis of responsiveness, and modified the language related to its aggregation of FOIA requests.

See full article here (subscription required).

Read court’s decision in “Court Opinions” post below.

Court opinions issued Sept. 12, 2022

Ecological Rights Found. v. Envtl. Prot. Agency (D.D.C.) — in a challenge to the EPA’s 2019 direct final rule implementing various changes to the agency’s FOIA regulations, (1) granting the government’s motion to dismiss several claims on various grounds (lack of standing, failure to state a claim, redressability, and/or statute of limitations)—namely, two substantive claims challenging provisions requiring submission of all requests to the EPA’s National FOIA Office and authorizing the Administrator to issue final determinations, as well as a procedural claim alleging failure to promulgate the rule through notice-and-comment rulemaking; (2) remanding the remaining claim without vacatur to permit the EPA to revise a portion of the rule authorizing the withholding of a “portion of a record on the basis of responsiveness.”

Cause of Action Inst. v. Dep’t of Commerce (D.D.C.) — ruling that: (1) requester had standing to bring policy-and-practice challenge to agency’s allegedly unlawful withholding of Section 232 secretarial reports under Exemption 5, in conjunction with the presidential-communications and deliberative-process privileges, until such time as the President directs disclosure; (2) the same policy-and-practice claim was ripe for review because it required neither “speculation about future application” nor consideration of “the facts of a particular case”; and (3) the claim fails on the merits because secretarial reports required under 19 U.S.C. § 1862(b)—or at least the underlying report requested by the plaintiff—falls “squarely within [the presidential-communications] privilege” as “a confidential report from a Cabinet Secretary to the President, created to advise him on matters of national security and ‘made in the process of shaping policies and making decisions.’”

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

FOIA News: FOIA Advisory Committee meeting

The Committee is meeting for the second time this month on Wednesday, September 14, 2022, from 10am to noon. Additional meeting information is available here.

FOIA News: FDA finalizes FOIA regulations

The Food and Drug Administration issued a final rule today amending its FOIA regulations, which will become effective on October 13, 2022. The amendments incorporate statutory revisions from 2007 and 2016, and “reflect changes to the organizational structure of FDA, . . . make the FOIA process easier for the public to navigate, and . . . make provisions clearer.”

Court opinion issued Sept. 9, 2022

Wash. Post v. DOD (D.D.C.) -- ruling that: (1) government could not use Exemption 6 to categorically withhold names of retired, non-Senate confirmed service members who applied to work for foreign governments; (2) government was required to disclose income and security clearance information of retired, Senate-confirmed foreign employment applicants that had been withheld under Exemption 6; (3) Air Force properly relied on Exemption 7(C) to withhold name of military officer alleged to have violated federal law; (4) Departments of the Army and the Navy improperly relied on attorney-client privilege to withhold portions of memoranda containing facts provided by non-agency personnel, and they failed to reasonably segregable factual materials withheld under the deliberative process privilege.

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