FOIA Commentary: 2022 FOIA news in review

As a new year gets underway, the staff of FOIA Advisor are pleased to provide a summary of the most notable FOIA developments outside the courthouse in 2022. We will discuss our top 10 court decisions issued last year in a forthcoming post.

Legislative proposals

Despite a great deal of scuttlebutt over the prospect of comprehensive FOIA reform in the last Congress—especially in light of the then-expected (now-realized) retirement of long-time FOIA advocate Senator Patrick Leahy (D-VT)—there were only a handful of legislative proposals introduced in calendar year 2022 that substantively dealt with public access issues.

• On March 15, 2022, U.S. Senator Jodi Ernst (R-IA) introduced the Watchdog Act, which would have created a new agency within the Executive Office of the President tasked with overseeing the implementation of all federal transparency laws, including the FOIA and Privacy Act.

• On June 14, 2022, U.S. Senators Marco Rubio (R-FL) and Tom Cotton (R-AR) introduced the First Opportunity for Information to Americans Act (or FOIA Fix Act), which would have limited FOIA requests to U.S. citizens, legal aliens, and entities with a principal place of business in the United States or U.S. territory.

• On December 9, 2022, U.S. Senators Pat Toomey (R-PA) and Elizabeth Warren (D-MA) unveiled the Financial Regulators Transparency Act of 2022, which among other things would have extended the FOIA’s reach to regional Federal Reserve Banks and created special privileges and access rights for congressional requesters seeking records from the Federal Reserve, CFPB, SEC, FDIC, OCC, NCUA, and FHFA.

None of the foregoing proposals became law. But the Consolidated Appropriations Act for 2023, which did receive the President’s signature on December 29, 2022, included at least one substantive section dealing with the FOIA. Specifically, Section 406 requires the Department of Veterans Affairs to devise and implement a five-year plan to improve the agency’s FOIA technology, permit FOIA officers to conduct searches and review directly (rather than relying on search memoranda, for example), and to set milestones for reduction of the processing backlog. The section also requires OGIS to assess the VA’s compliance with the FOIA, and for the agency to provide annual reports to Congress and the public on the progress of the five-year backlog-reduction plan.

Regulatory updates

By our count, six agencies proposed changes to their FOIA regulations in 2022: Central Intelligence Agency; Office of the Intellectual Property Enforcement Coordinator; Environmental Protection Agency; Office of Special Counsel; Corporation for National and Community Service; and the Export-Import Bank.

Seven agencies issued final rules amending their FOIA regulations: Food and Drug Administration; Office of Special Counsel; Corporation for National and Community Service; U.S. Agency for International Development; Export-Import Bank; Federal Mine Safety and Health Review Commission; and the Pension Benefit Guaranty Corporation.

(Additionally, the EPA’s 2019 direct final rule implementing various changes to the agency’s FOIA regulations survived legal challenge in Ecological Rights Found. v. Envtl. Prot. Agency (D.D.C. Sept. 12, 2022).)

Attorney General memorandum

Attorney General Merrick Garland issued FOIA guidance to agencies on March 15, 2022, much to the delight of non-profit groups that had petitioned Garland in April 2021 and January 2022. The new guidance identifies four main principles: (1) a presumption of openness; (2) proactive disclosures; (3) removing barriers to access and reducing backlogs; and (4) ensuring fair and effective FOIA administration. Garland’s memo superseded Attorney General Eric Holder’s 2009 FOIA guidance, which the Trump Administration left in place.

Federal FOIA Advisory Committee recommendations

The most recent term of the federal FOIA Advisory Committee concluded in June 2022 with publication the next month of a final report and set of recommendations to the Archivist of the United States. Among other things, the Committee suggested reforms to the use of “Neither Confirm Nor Deny”/Glomar responses, as well as classification under Executive Order 13526; further consideration of the impact of Section 508 of the Rehabilitation Act on the FOIA; more frequent publication of FOIA logs; changes to the first-person request process; and a strengthening of the role OGIS places in FOIA administration.

Miscellaneous developments

• The phase-out of FOIAonline continues. As of the date of this blogpost, NARA, NRS, and SBA are no longer using FOIAonline to manage FOIA requests, and CBP has stopped accepting new requests through the portal. The EPA still plans to “sunset” the FOIAonline platform by the end of 2023.

• Relatedly, DHS has started transitioning away from its legacy FOIAXpress Public Access Portal, and is now managing requests across most DHS sub-agencies (with the exception of USCIS, OIG, and the Secret Service) through the new “SecureRelease” platform.

• DOJ’s Office of Information Policy and NARA have announced their cooperation with GSA to develop new FOIA “business standards” to facilitate improved compliance and more efficient processing. As part of that initiative, NARA hosted a NexGen FOIA Tech Showcase in February 2022, which aimed to identify new technological solutions for FOIA case management. Additionally, OIP is working on an interactive “FOIA wizard” to help users “navigate” FOIA.gov.

• In December 2022, the White House published the Fifth U.S. Open National Action Plan. As part of that plan, DOJ has committed to take a number of steps to bolster openness and transparency, including issuing an updated FOIA Self-Assessment Toolkit, finalizing shared FOIA business standards (as described above), and improving the user experience on FOIA.gov.

• Although not directly related to the FOIA, at the end of December 2022, the Office of Management and Budget published Memorandum M-23-07 concerning the transition of all Federal agencies to an “electronic” or “paperless” environment. Among other things, Federal agencies are now expected to manage all permanent records in an electronic format by the end of June 2024, and to thereafter transfer records in electronic format with all metadata whenever depositing those records with the Archives.

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.