FOIA News: More on DOJ’s new guidance; FOIA websites

The Justice Department Underscores the Need for FOIA ‘Presumption of Openness’

New guidance comes at the start of the annual “Sunshine Week” promoting open government.

By Courtney Buble, Gov’t Exec., Mar. 13, 2023

The Justice Department issued new Freedom of Information Act guidelines on Monday, underscoring the need to have a “presumption of openness.” 

The release came at the beginning of the annual Sunshine Week, which promotes open government, and follows related guidance Attorney General Merrick Garland issued last March. Federal agencies reached a record high of 928,353 information requests in fiscal 2022, and processed a record high of 878,420, according to recently released statistics from the Justice Department. Yet despite the high number of requests processed, the backlog of pending requests increased by 34%. Delays in receiving records requests and redactions in requests received have long frustrated journalists, transparency advocates, lawmakers and others who make use of FOIA.

Read more here.

FOIA News: Worst FOIA responses of 2022

The Electronic Frontier Foundation and MuckRock have issued their annual list of 14 public records responses—at both the federal and local level—as “the worst in government transparency.”

FOIA News: OIP Releases New Guidance on Foreseeable Harm

OIP Issues Guidance on the Presumption of Openness and Foreseeable Harm Standard

Dep’t of Justice, Office of Info. Pol’y, Mar. 13, 2023

Today, the Office of Information Policy (OIP) issued new guidance on applying a presumption of openness and the foreseeable harm standard. This guidance addresses the presumption of openness emphasized in the Attorney General’s FOIA Guidelines issued in March 2022 and discusses in detail the requirement that agencies may only withhold information if they reasonably foresee that disclosure would harm an interest protected by an exemption or disclosure is prohibited by law. 

The guidance advises agencies to review records with an eye toward disclosure and with transparency in mind.   The guidance provides practical advice to agencies on applying the foreseeable harm standard in light of case law that has developed since this standard was codified by the FOIA Improvement Act of 2016.  It explains that agencies should analyze records on a case-by-case basis, while employing practical and efficient means of assessing foreseeable harm with the information and context readily available to them.  The guidance also provides practical advice on considering discretionary disclosures as encouraged by the Attorney General’s FOIA Guidelines.     

Communication with requesters is emphasized as a key element of administering the FOIA with a presumption of openness.  As detailed in the guidance, agencies should communicate promptly with requesters throughout the request process, including by providing status updates, and clearly explaining the basis for denials in response letters, along with acknowledging that they have considered the foreseeable harm standard when asserting exemptions.

Read more here.

Guidance available here.

FOIA News: Sunshine Week With U.S. Senator Chuck Grassley

Q&A: Sunshine Week With U.S. Senator Chuck Grassley

Mar. 10, 2023

Q: What is Sunshine Week?

 A: Sunshine Week celebrates the public’s right to know what its government is doing. As a watchdog for good government, I put a high priority on strengthening sunshine laws to hold the government accountable to the American people. Transparency brings accountability. Too often, the federal bureaucracy forgets that government business is the people’s business. Just consider one of our nation’s first and prolific defenders of open government. James Madison recognized how important transparency was to get buy-in from the victors of the Revolutionary War to form a new government. Americans who shed blood to free themselves from tyranny would want constitutional guardrails to prevent encroachment of these freedoms for generations to come. Sunshine Week honors Madison’s legacy on the anniversary of his birth on March 16, 1751.

Read more here.

FOIA News: Postal Regulatory Commission to amend FOIA regulations

The Postal Regulatory Commission has proposed to amend several sections of its FOIA regulations to address certain material submitted by third parties, according to a Federal Register notice scheduled to be published on March 13, 2023. Comments must be received by April 6, 2023.

FOIA News: DOJ releases updated toolkit for agency assessments

UPDATED FOIA SELF-ASSESSMENT TOOLKIT NOW AVAILABLE

By DOJ/OIP, FOIA Post, Mar. 9, 2023

Today, the Office of Information Policy (OIP) posted a comprehensive update to its Freedom of Information Act (FOIA) Self-Assessment Toolkit.  This update fulfills one of the Department’s commitments from the Fifth U.S. Open Government National Action Plan to strengthen access to government information through the FOIA.  The Toolkit, originally issued in 2017, is a resource for agencies to use when assessing their administration of the FOIA.  OIP has encouraged agencies to conduct self-assessments and many agencies have reported doing so in their Chief FOIA Officer Reports in recent years. 

Read more here.

FOIA News: CDC AGREES TO SETTLEMENT IN AMERICAN OVERSIGHT LAWSUIT CHALLENGING AGENCY’S FOIA PRACTICES

PUBLIC RECORDS VICTORY: CDC AGREES TO SETTLEMENT IN AMERICAN OVERSIGHT LAWSUIT CHALLENGING AGENCY’S FOIA PRACTICES

American Oversight, Mar. 10, 2023

American Oversight has reached an important settlement agreement in a lawsuit filed against the Centers for Disease Control and Prevention (CDC) over the agency’s illegal practice of rejecting valid Freedom of Information Act (FOIA) requests.

The settlement includes a requirement that the CDC send an instructional email to all FOIA staff regarding the improper rejection of requests as “overly broad” — a claim the agency used to deny several of American Oversight’s requests related to the pandemic in 2020.

Read more here.

Court opinions issued Mar. 9, 2023

Stevens v. Broad. Bd. of Governors (N.D. Ill.) -- on renewed summary judgment, concluding that: (1) U.S. Agency for Global Media performed adequate search for contract records and properly withheld certain records pursuant to Exemption 4; (2) HHS adequately explained it search process and properly withheld employee names and titles under Exemption 6; (3) USCIS performed reasonable search and properly relied on Exemption 4 to withhold contractor’s pricing information; and (4) USAID cured its search deficiency with supplemental search; and (5) ICE adequately justified its withholdings under Exemption 5’s deliberative process, attorney work-product, and attorney-client privileges.

Williams v. DOJ (D.D.C.) -- determining that DEA properly withheld various records concerning plaintiff’s criminal case pursuant to Exemptions 7(E) and 7(F), that plaintiff was not entitled to special access to records under FOIA to attack his criminal conviction, and that plaintiff was not entitled to appointment of counsel.

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

Court opinion issued Mar. 8, 2023

Welsh v. U.S. Dep't. of State (D.D.C. ) -- determining that agency performed reasonable search for a list of all posts filled by a specific type of U.S. personnel that had international travel restrictions imposed on them, and that the agency was not required to create such a list for plaintiff.

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

Court opinions issued Mar. 6-7, 2023

Mar. 7, 2023

S. Envtl. Law Ctr. v. Tenn. Valley Auth. (E.D. Tenn.) -- ruling that agency properly relied on Exemption 4 to redact certain information contained in two contracts negotiated with natural gas pipeline companies; further ruling that foreseeable harm provision was applicable, consistent with Second Circuit’s 2022 decision in Seife v. FDA, and that agency adequately established that disclosure would harm companies’ commercial or financial interests; declining to decide whether disclosure was prohibited by Trade Secrets Act and thus outside reach of foreseeable harm provision.

Mar. 6, 2023

Aguirre v. U.S. Nuclear Regulatory Comm'n (S.D. Cal.) -- finding that: (1) agency failed to perform reasonable search for certain communications between NRC and generating station operators pertaining to incident involving storage of nuclear waste; (2) agency properly withheld identities third parties pursuant to Exemption 7(C); (3) agency properly withheld link to agency computer network pursuant to Exemption 7(F); (4) agency properly relied on Exemption 4 to withhold two “proprietary” documents submitted by private companies under implied promise of confidentiality; not addressing whether foreseeable harm provision applied to Exemption 4; and (5) rejecting plaintiff’s argument that separate Vaughn index was necessary due to alleged deficiencies in agency’s declaration.

Huddleston v. FBI (E.D. Tex.) -- denying plaintiff’s request for interim attorney’s fees and costs in case concerning FBI’s investigation of Seth Rich’s death, but permitting plaintiff to refile same motion after court ruled on pending motions for reconsideration.

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