Court opinions issued Dec. 30, 2022

Rocky Mountain Wild, Inc. v. U.S. Forest Serv. (10th Cir.) -- affirming district court’s decision and finding that: (1) plaintiff waived argument that Vaughn Index was insufficient; (2) agency performed reasonable search for voluminous records concerning proposed highway project; (3) agency properly withheld records pursuant to Exemption 5 and demonstrated prospective harm, but declining to hold that the foreseeable harm provision imposed a “heightened burden”; and (4) district court properly ordered plaintiff to return two documents that agency accidentally disclosed to plaintiff without redaction, even though another organization subsequently posted the documents online.

Wright v. HHS (D.D.C.) -- denying government’s motion to dismiss case concerning COVID-19 vaccine safety records, because agency ignored Departmental regulation to contact requester and explain why it found one of his requests to be overbroad and not reasonably described.

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

FOIA News: Fifth U.S. Open Nat’l Action plan includes DOJ FOIA commitments

Some FOIA news from the Fifth U.S. Open National Action Plan released a few days ago. The U.S. Department of Justice has committed to take the following steps to bolster openness and transparency:

• Issuance of an updated FOIA Self-Assessment Toolkit, originally issued in 2017, to reflect, among other things, additional milestones for proactive disclosures, use of technology, and requirements of the Attorney 16 General’s new FOIA Guidelines.

• Leading a Chief FOIA Officer Council working group that will collaborate with the Office of Government Information Services at the National Archives and Records Administration, the Office of Shared Services & Performance Improvement at the Government Services Administration, and the Business Standards Council to develop shared FOIA business standards. The shared business standards will make it easier for agencies to acquire FOIA technology and, in turn, improve efficiency and consistency in processing requests across the Federal Government. Having established standards will also help industry create new solutions to meet agencies’ needs.

• Enhancement of the user experience on FOIA.gov, the Federal Government’s central website for FOIA, by developing an interactive tool to help members of the public more easily locate records that are already available online or find the right agency to submit their FOIA requests when information is not already posted online.

Court opinions issued Dec. 27, 2022

Sayed v. U.S. Maritime Admin. (D. Mass.) -- concluding that agency neglected to sufficiently explain its search methodology in response to request for records pertaining to government-owned vessel docked in Alabama in 2020.

Woodward v. USMS (D.D.C.) -- on second renewed summary judgment, ruling that: (1) agency failed to show that another court’s sealing order precluded FOIA disclosure of records pertaining to use of cell phone tracking technology during criminal investigation of plaintiff; and (2) agency waived its right to make new withholding claim under Exemption 3, in conjunction with the Pen Register Act.

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

FOIA News: Yale asks SCOTUS to review denial of access to Trump campaign records

MFIA Fights for Trump’s Visitor Records and the Future of FOIA

By Yale Law School, Dec. 22, 2022

The Media Freedom and Information Access Clinic (MFIA) is asking the Supreme Court to review a lower court decision the clinic says dramatically restricts the scope of the Freedom of Information Act (FOIA). The decision of the Second Circuit Court of Appeals allows the Secret Service to withhold records identifying visitors to former President Donald Trump before he took office simply because the Trump campaign requested confidentiality. 

“The Second Circuit’s decision that records used by a federal agency are exempt from disclosure under FOIA if they were obtained from a party that wanted them to remain confidential stands FOIA’s disclosure mandate on its head,” said Floyd Abrams Lecturer in Law and MFIA Director David Schulz ’78. “The ruling sets dangerous precedent that threatens to undermine government accountability.”

From November 2015 until he entered office in January 2017, Trump received Secret Service protection as a presidential candidate and President-elect. During this time, news reporting often addressed Trump’s meetings with lobbyists for major corporations and special interest groups. In September 2017, investigative journalist Richard Behar filed FOIA requests seeking records of visitors to Trump and his associates while Trump was under agency protection.

Read more here.

Court opinion issued Dec. 20, 2022

NBC 7 San Diego v. DHS (D.D.C.) -- concluding that DHS and two components failed to provide sufficient explanations as to why they deemed requested records concerning a secret tracking database to be non-responsive, noting that agencies improperly considered “context” of requests instead of identified search terms.

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

FOIA News: Nominations open for worst agency FOIA responses

It’s time once again: Share your transparency horror story with a nomination to The Foilies 2023

The Electronic Frontier Foundation and MuckRock partner once again to highlight what not to do when you work for the public

By Derek Kravitz, MuckRock, Dec. 19, 2022

We are now accepting submissions for The Foilies 2023, the annual project to give tongue-in-cheek awards to the officials and institutions that behave badly (or ridiculously) when served with a request for public records.

Compiled by the Electronic Frontier Foundation and MuckRock, The Foilies run as a cover feature in alternative newsweeklies across the United State, during Sunshine Week (March 12-18, 2023), through a partnership with the Association of Alternative Newsmedia.

Read more here.

Court opinions issued Dec. 19, 2022

Platsky v. FBI (2nd Cir.) (summary order) -- affirming district court’s ruling that FBI properly relied on Exemption 7(E) in refusing to confirm or deny records indicating whether plaintiff appeared on watchlist.

Naumes v. Dep’t of the Army (D.D.C.) -- on renewed summary judgment, ruling that Army properly withheld three sets of survey questions pursuant to Exemption 4 because questions were designed and voluntarily submitted by private scientist who held copyright.

Nat’l Pub. Radio v. U.S. Cent. Command (S.D. Cal.) -- determining that agency performed reasonable search for records concerning the First Battle of Fallujah on April 12, 2004, and denying plaintiff’s request for declaratory judgment regarding government’s untimely response.

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

Court opinion issued Dec. 15, 2022

Dec. 15, 2022

Proj. on Gov’t Oversight v. U.S. Dep’t of the Treasury (D.D.C.) -- finding that Treasury performed reasonable search for certain emails of seven senior officials, rejecting plaintiff’s argument that Treasury was required to prove that employees followed policy of forwarding work-related emails on their personal accounts to their official Treasury accounts.

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

FOIA News: Backlogs increased at top 3 agencies in FY 2022; DHS received 471k requests

The overdue FOIA requests of the Departments of Homeland Security, Justice, and Defense—the three most popular agencies for FOIA requesters—all increased in fiscal year 2022, according to quarterly data reported by DOJ’s website FOIA.gov.

• The Department of Homeland Security, which in FY 2021 received the most FOIA requests governmentwide (442,650 requests, or 53 percent), saw its backlog climb from 25,102 in FY 2021 to 60,688 in FY 2022—a 141 percent increase. DHS received 471,513 requests in FY 2022, the greatest number of requests DHS has ever received and a 6.5 percent increase from FY 2021. The Department processed 530,180 requests in FY 2022, the largest number of requests it has ever processed and a 13.4 percent increase from FY 2021.

• The Department of Justice, which in FY 2021 received the second most FOIA requests governmentwide (97,490 requests or 12 percent), allowed its backlog to rise from 49,959 in FY 2021 to 63,728 requests in FY 2022—a 27.5 percent increase. DOJ received 93,407 requests in FY 2022, while it processed 84,099 requests—an 11.4 percent increase from FY 2021.

• The backlog of the Department of Defense, which in FY 2021 received the third most FOIA requests governmentwide (52,805 or 6 percent), rose from 17,597 in FY 2021 to 18,708 in FY 2022—a 6.3 percent increase. DOD received 57,237 requests in FY 2022, an 8.4 percent increase from FY 2021; it processed 54,560 requests in FY 2022 versus 50,703 requests in FY 2022.

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.