FOIA News: FOIA operating procedures are tough to get, says digital rights group

Federal Agencies Keep Rejecting FOIA Requests for Their Procedures for Handling FOIA Requests

By Beryl Lipton, Elec. Frontier Found., Dec. 16, 2022

The majority of federal agencies — including law enforcement agencies like Customs and Border Protection — are refusing to release some of the most basic guidance materials used by their Freedom of Information Act (FOIA) offices: procedures for how they do their jobs.

Government Attic, a website that regularly files FOIA requests and posts the provided records, estimates that at least 60 percent of federal agencies, when faced with filling requests for FOIA standard operating procedures (SOP), claimed that the documents are in draft form and exempt from disclosure or that they don’t have any such records at all. 

Read more here.

Court opinions issued Dec. 14, 2022

Frost v. DOJ (9th Cir.) (unpublished) -- affirming district court’s decision, noting that appellant failed to raise genuine dispute about the adequacy of government’s search for records and that court would not consider issues raised for first time on appeal.

Wine v. Dep’t of the Interior (D.D.C.) -- denying plaintiff’s motion to amend court’s judgment that plaintiff failed to appeal from agency’s partial denial of his request for records concerning himself.

Young v. DOJ (D.D.C.) -- ruling that FBI performed reasonable search for informant records pertaining to plaintiffs criminal prosecution and that it properly withheld records pursuant to Exemption 7(D).

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

FOIA News: NARA proposes to release Hunter Biden emails

The National Archives wants to release hundreds of pages of emails about Hunter Biden and Burisma — and the White House won't say whether it will let it happen.

By Mattathias Schwartz, Business Insider, Dec. 14, 2022 

• The emails are from 2014, when President Joe Biden served as vice president under former President Barack Obama.

• The White House now has 60 days to decide whether to stop the release of the emails by invoking executive privilege. 

The National Archives and Records Administration (NARA) is quietly preparing to release hundreds of pages of internal Obama White House records that could contain information about Hunter Biden's relationship with Ukrainian energy company Burisma, Insider has learned — and the Biden Administration, which could put a stop to it by invoking executive privilege, is refusing to say whether it will allow the release to go forward.

Read more here.

FOIA News: EEO-1 data to be released next month

Update: OFCCP Plans to Disclose EEO-1 Data for Non-Objecting Contractors Starting January 2023

By Abby Warren, Nat’l Law Rev., Dec. 13, 2022

As an update to our October 12, 2022 post regarding the deadline for federal contractors and first-tier subcontractors to object to disclosure of their Type 2 Consolidated EEO-1 reports from 2016 to 2020, the Office of Federal Contract Compliance Programs (OFCCP) has provided federal contractors with more information regarding the release of such information.

Specifically, non-objecting contractors began receiving e-mails from the OFCCP as early as November 22, 2022, notifying them of the agency’s intent to release the EEO-1 data beginning on January 2, 2023. The e-mail stated that if the contractors believe the OFCCP sent this message to them in error – for example, if the company filed objections or did not meet the requirements for disclosure during a specific time period – contractors should reach out to the OFCCP as soon as possible, but no later than January 2, 2023.

Read more here.

FOIA News: Maryland, My Maryland

After a hiatus, the Maryland FOIA-mobile has returned. The owner’s identity is known, but will not be revealed here to protect his or her privacy.

Court opinion issued Dec. 9, 2022

Harrington v. HHS (D.D.C.) -- denying plaintiff’s request for attorney’s fees after concluding that plaintiff was ineligible for fees. Specifically, the court found that plaintiff failed to show that “his lawsuit substantially caused HHS to release records. HHS began processing [plaintiff’s] requests before he filed his complaint, and any delays by HHS were fairly attributable to the scope of [plaintiff’s] requests and a substantial backlog of other FOIA requests.”

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

FOIA News: Senators propose expanding FOIA to Federal Reserve Banks

Senators Elizabeth Warren and Pat Toomey unveiled a bill on Friday, December 9, 2022, that would subject all regional Federal Reserve Banks to the Freedom of Information Act. Press release is here. Summary of the bill is here.

Court opinion issued Dec. 1, 2022

Greenspan v. Bd. of Governors of the Fed. Reserve Sys. (D.D.C.) -- finding that: (1) Board properly relied on Exemption 4 to withhold communications received from two private firms that contained their internal economic analyses; and (2) Board properly invoked Exemption 5’s deliberative process privilege to withhold other communications sent and received by Chairman Powell containing the term “bubble” or “taper tantrum.”

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

FOIA News: Academic Commentary on Campaign Legal Center v. DOJ (Part III of III)

Campaign Legal Center v. DOJ - FOIA Postscript to Department of Commerce v. New York (Part III)

Bernard Bell, Yale J. on Reg., Notice & Comment Blog, Dec. 4, 2022

Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. DOJ, 34 F.4th 14 (D.C. Cir. 2022). This is the third in a series of three posts addressing Campaign Legal Center. Having discussed the D.C. Circuit’s dismissive treatment of a potential “government misconduct” exception argument (Part I), and then laid out the caselaw regarding that exception (Part II), this third post will provide my own analysis of the issue at the heart of the case.

Read more here.

FOIA News: Academic Commentary on Campaign Legal Center v. DOJ (Part II of III)

Campaign Legal Center v. DOJ - FOIA Postscript to Department of Commerce v. New York (Part II)

Bernard Bell, Yale J. on Reg., Notice & Comment Blog, Nov. 29, 2022

Can an agency properly invoke the deliberative process privilege to shield internal deliberations over a sham memo requesting that another agency take action, knowing that the recipient agency will use the request to hide the real reason for its contemplated action? Earlier this year, the D.C. Circuit answered in the affirmative. Campaign Legal Center v. DOJ, 34 F.4th 14 (D.C. Cir. 2022). This is the second in a series of three posts discussing Campaign Legal Center. The first post provided the factual background for Campaign Legal Center and described the D.C. Circuit’s resolution of the issue. This post lays out the history of the “government misconduct” exception to the deliberative process privilege.

Read more here.