IRS Beats Microsoft's FOIA Suit Over 15-Year Audit
By Natalie Olivo, Law360, Jan. 19, 2023
The IRS adequately searched for documents on its 15-year audit of Microsoft while justifying exemptions to disclosure requirements for withheld files, a Washington federal judge ruled, tossing the tech giant's case seeking records under the Freedom of Information Act.
Read more here (subscription).
Fifth Open Government National Action Plan Issued
Dep’t of Justice, OIP Blog, Jan. 18, 2023
The U.S. Government recently issued the Fifth Open Government National Action Plan containing several commitments to increase the public’s access to data to better advance equity, engage the public in the regulatory process, make government records more accessible to the public, and improve the delivery of government services and benefits, among other areas. The plan was developed through public engagement with hundreds of participants and consideration of written public comments.
The Office of Information Policy is pleased to be leading work on multiple commitments related to strengthening access to government information through the Freedom of Information Act (FOIA). Building on its work to implement the Attorney General’s March 2022 FOIA Guidelines, the Department commits to further bolstering openness and transparency by:
Issuing an updated FOIA Self-Assessment Toolkit to reflect additional milestones for proactive disclosures, use of technology, and requirements of the Attorney General’s new FOIA Guidelines.
Leading the development of shared FOIA business standards to make it easier for agencies to acquire technology and, in turn, improve efficiency and consistency in processing FOIA requests.
Developing an interactive tool to help the public more easily locate records online or find the right agency to submit their FOIA requests when information is not already posted.
You can read the White House press release here and visit https://open.usa.gov/ for information on the U.S. Government’s Open Government work as well as for future opportunities for engagement and feedback. Continue to follow FOIA Post for updates on the above FOIA initiatives.
Read the original post here.
OIP Now Accepting Nominations for the 2023 Sunshine Week FOIA Awards
Dep’t of Justice, OIP Blog, Jan. 2023
The Department of Justice, Office of Information Policy (OIP) is pleased to announce that nominations are open for the 2023 Sunshine Week FOIA Awards, recognizing the contributions of FOIA professionals from around the government. As the Attorney General recognized in his FOIA Guidelines issued in March 2022, “[t]he federal government could not process the hundreds of thousands of FOIA requests that are received every year without its dedicated FOIA professionals.” Agency FOIA professionals are at the center of ensuring successful FOIA administration and we look forward to celebrating the work of these individuals from around the government. For this year’s event, OIP is seeking nominations for five categories of awards:
Exceptional Service by a FOIA Professional or Team of FOIA Professionals
Outstanding Contributions by a New Employee
Exceptional Advancements in IT to Improve the Agency’s FOIA Administration
Exceptional Advancements in Proactive Disclosure of Information
Lifetime Service Award
Nominations can be submitted by agencies or by a member of the public. All nominations are due to OIP by Wednesday, February 15.
Awardees will be recognized during the Department’s 2023 Sunshine Week event on March 13th.
For more information, including submission guidelines, read here.
Perioperative Services & Logistics, LLC v. Dep’t of Veteran Affairs (D.C. Cir.) — on appeal, holding that the district court did not abuse its discretion in choosing to accept and rely upon an ex parte declaration because, as the court below explained, “[t]his is one of the rare cases . . . where the ex parte submission, with its detailed description of the nature of the withheld document and the reasons underlying the exemption, was necessary to preserve the privacy of the third party” implicated in the underlying record; holding, further, that the agency properly applied Exemption 6 and satisfied its obligation to release reasonably segregable non-exempt portions of the record at issue.
Summaries of all published opinions issued since April 2015 are available here.
Bahrampour v. Dep't of the Army (D. Md.) -- finding that plaintiff failed to administratively appeal from agency component’s final response to his request concerning bioeffects of non-lethal weapons, but allowing plaintiff 20 days to amend his Complaint to address actions of three other Army components.
Summaries of all published opinions issued since April 2015 are available here.
Conn. Fair Hous. Ctr. v. HUD (D. Conn.) -- on reconsideration, ruling that: (1) plaintiff’s motion for attorney’s fees and costs would be deemed timely filed due to “unique circumstances” and lack of prejudice to HUD; (2) court clearly erred in citing Second Circuit case that was abrogated by 2007 statutory amendment endorsing “catalyst theory” for recovering fees; and (3) plaintiff failed to prove that records were released more quickly because of its lawsuit; HUD diligently responded to request initially, but it was delayed by the COVID-19 pandemic and resolving request-related legal questions.
Summaries of all published opinions issued since April 2015 are available here.
Bioscience Advisors, Inc. v. SEC (N.D. Cal.) -- in relevant part, determining that agency performed adequate search for multiple contract exhibits and that, in any event, plaintiff had not exhausted its administrative remedies for 83 requests; further finding that plaintiff’s claim concerning agency’s withholdings was not exhausted, either.
Summaries of all published opinions issued since April 2015 are available here.
On January 9, 2023, the Center for Plain Language issued its 11th annual report card evaluating how well agencies follow the Plain Writing Act. The Center examined two online pages of 21 executive branch agencies: the main Contact Us page and the main FOIA request page. The Department of Agriculture’s FOIA page was singled out as “exemplary,” while the Department of Commerce’s FOIA page was described as one that “needs work.”
See the full report here.
See related article from Government Executive here.
New Year, New Public Comments Form
By Office of Gov’t Info. Serv., FOIA Ombudsman, Jan. 9, 2023
As we begin a new year and say “hello” to 2023, we have news to share: OGIS is excited to announce our new public comments form. This new tool allows the public to submit their comments to the FOIA Advisory Committee, the Chief FOIA Officers Council, and the OGIS Annual Meeting while streamlining our internal process to create efficiencies.
We value hearing from stakeholders in the federal FOIA landscape and written public comments are an important way for us—and the Committee and Council—to better understand the experiences of FOIA requesters. One of our strategic goals at the National Archives and Records Administration is “Connect with Customers,” and as the FOIA Ombudsman, we do that every day by listening to the FOIA process.
Read more here.
Q. I'm looking to submit a Freedom of Information Law request to a district attorney’s office in New York for my brother, who is incarcerated. Can I request a records of plea offers that were offered throughout his case? Are plea offers documented, and where can I obtain such records?
A. If you wish to submit a request on behalf of your brother, you will need to obtain his express written consent, for example, a notarized document or signed under penalty of perjury. Without his written consent, your FOIL request will likely be denied on privacy grounds because the public at large is not entitled to access your brother's criminal-related files (including you). I do not know whether district attorney offices in New York routinely make their initial plea offers in writing or orally. I presume your brother could tell you whether he (or his attorney) ever saw a written plea offer.