Atty Pushes Back After DOJ Says DEA Not An Agency
By Sam Reisman, Law360, Feb. 22, 2023
An attorney who brought a Freedom of Information Act suit against the Drug Enforcement Administration asked a federal judge on Tuesday for a judgment declaring that the DEA is, in fact, a government agency, despite what Department of Justice officials have said.
Read more here (subscription).
The U.S. Department of Education has posted its annual FOIA report for fiscal year 2022, and much of the news is not great. Here are the highlights:
2372 requests received and 1462 processed, a deficit of 910 requests. In FY 2021, the Department processed more requests (2292) than it received (2151) .
The request backlog soared from 697 in FY 2021 to 1557 in FY 2022, a staggering 123 percent increase.
Total processing costs dropped from $9.5 million to $8.6 million, a 9.4 percent decrease.
Overall agency response time for all processed perfected requests was an average of 5.6 days for “simple” requests and 182 days for “complex” requests.
$19,515 of processing fees were collected, which is less than one quarter of one percent of the Department’s processing costs.
State of Georgia v. DOJ (D.D.C.) -- holding that: (1) DOJ failed to establish that communications exchanged with private parties concerning joint election-related lawsuits against plaintiff qualified as “intra-agency” communications under the consultant corollary exception to Exemption 5; and (2) even if disputed communications were considered “intra-agency,” DOJ could not rely on the deliberative process and attorney work-product privileges because it failed to show that it had “sufficiently similar legal interest with of the private litigation groups” to invoke the common interest doctrine.
Summaries of all published opinions issued since April 2015 are available here.
The U.S. Department of Housing and Urban Development has released its fiscal year 2022 annual FOIA report. Here are the highlights:
1819 requests received, an increase of 4.9 percent from FY 2021 (1734 requests)
2031 requests processed, a decrease of 2.9 percent from FY 2021 (2093 requests)
Backlogged requests stood at 626 requests at the end of FY 2022, a reduction of 22.5 percent from FY 2021 (808 requests).
The average response time for all processed perfected requests was 80.17 days for “simple” requests and 276 days for “complex” requests.
Processing costs and litigation costs amounted to $7.17 million. The Department reported only $100,535 in total costs for FY 2021, which undoubtedly was an error.
Fees collected for processing requests amounted to $12,372, less than one-fifth of one percent of its total costs.
The U.S. Department of Health and Human Services has published its fiscal year 2022 annual FOIA report. Here are the highlights.
38,462 requests received, a 15 percent increase from FY 2021, when 33,158 requests were received.
37,241 requests processed, a 13.5 percent increase from FY 2021, when the agency processed 32,952 requests.
Backlogged requests increased 13.2 percent, from 9,955 in FY 2021 to 11,320 in FY 2022.
Processing and litigation costs were $29 million and $4.5 million, respectively, a 28 percent increase from FY 2021 ($26 million total costs).
Processing fees of $717,119 were collected, or 2,4 percent of total costs, with FDA collecting the highest amount at $447,791.
Kolbusz v. FBI (D. D.C.) -- adopting magistrate’s recommendation that FBI properly withheld records pertaining to plaintiff pursuant to Exemption 5’s attorney-client and deliberative process privileges, and ruling that magistrate properly denied plaintiff’s motion to supplement his complaint.
Summaries of all published opinions issued since April 2015 are available here.
Rubio Reintroduces 13 Bills
Office of Sen. Marco Rubio, Feb. 17, 2023
FOIA Fix Act. First introduced in June 2022, this legislation would fix an existing loophole in the Freedom of Information Act (FOIA) that allows foreign individuals, entities, and governments to submit FOIA requests.
Read more here.
Appeals Court Tells ICE Its Counterintuitive Tracking System Doesn’t Justify Jerking Around FOIA Requesters
from the stop-being-deliberately-obtuse dept
By Tim Cushing, Techdirt, Feb. 16, 2023
U.S. Immigration and Custom Enforcement (ICE), like nearly every government agency, doesn’t care much for FOIA requests or requesters. It generally takes a lawsuit to force the agency to comply with its FOIA obligations. And its day-to-day handling of FOIA requests is so uninspired, it couldn’t even come up with a reason to deny Mike Masnick’s fee waiver request.
Based on my review of your March 4, 2014 letter and for the reasons stated herein, I have determined that your fee waiver request is deficient because .
It will have to be (slightly) more responsive now. The Second Circuit Appeals Court has reversed a pretty terrible decision by the lower court in an FOIA lawsuit brought by the ACLU. The Appeals Court decision [PDF] opens up with the court’s attempt to explain ICE’s needlessly-convoluted incident tracking system.
Read more here.
The National Archives and Records Administration is soliciting nominations for a non-government representative to serve on its FOIA Advisory Committee through June 30, 2024. Further details are available in a Federal Register notice published on February 17, 2023.
Am. Soc’y for the Prevention of Cruelty to Animals v. Animal & Plant Health Inspection Serv. (2d Cir.) — affirming district court dismissal of “policy or practice claim” that alleged APHIS, as a result of its decommissioning of certain databases of proactively disclosed records , was regularly citing “exemptions that do not apply” and engaging in “unreasonable, inexcusable and unexplained delays” while adjudicating requests and appeals for the same records previously hosted on the databases; holding that, “even assuming that a ‘policy or practice’ claim is cognizable [in the Second Circuit], . . . such a claim . . . [fails] because [Congress] . . . reversed the alleged policy or practice . . . [by] direct[ing] the agencies to ‘restore’ each decommissioned database ‘and its contents’ to the status quo ante . . . [and to make those records] available ‘in their entirety without redactions except signatures’”; reasoning that, even if the D.C. Circuit’s decision in Payne Enterprises, Inc. v. United States, were adopted, it would be inapt because the same “extraordinary set of circumstances” is not present here; of especial note, in a concurrence, Judge Menashi opined that the FOIA does not provide for a ‘policy or practice’ claim, and “[t]he proper avenue for challenging the policies and practice of agencies [vis-a-vis the FOIA] is the APA, 5 U.S.C. § 706.”
Summaries of all published opinions issued since April 2015 are available here.