FOIA Advisor

Q&A: Money problems

Q&A (2015-2023)Allan BlutsteinComment

Q. Are payments to federal government contractors—e.g., dates, recipient names, and dollar amounts—exempt under FOIA?

A. This will be an unsatisfying response: “maybe, but probably not.” The burden is on the agency, of course, to establish that any exemption applies. Exemption 4 springs to mind as one possible ground for protecting some of the information you’ve inquired about, particularly the “dollar amounts.” Even if that exemption applies, however, the agency would also have to demonstrate that it “reasonably foresees that disclosure would harm” the contractor’s financial interests. That might be difficult because the total amount of a government contract is nearly always published. If the payment amounts could reveal a contractor’s hourly rates or unit prices, the government would have a stronger case for withholding.

As for recipient names, it’s unclear whether you mean the names of the contracting companies or the names of specific individuals who works for the contractors. Disclosing the former information would probably be less complicated. I use the qualifier “probably” because in one notable case that remains pending, contractors that manufactures a drug used in federal executions argue that the names of their companies are protected from disclosure under FOIA. See Citizens for Responsibility & Ethics in Wash. v. DOJ (D.C. Cir. 2023).

FOIA News: Pfizer and Moderna are FOIA Targets

FOIA News (2015-2023)Kevin SchmidtComment

FOIAengine Reveals Plaintiffs’ Lawyers, Anti-Vaxxers in the Hunt

By John A. Jenkins, Law Street, Apr. 5, 2023

Who might be contemplating getting a jump on Covid litigation once the moratorium expires?  This week, FOIAengine takes a look at some who are bombarding the Food and Drug Administration and other federal agencies with Freedom of Information Act document demands about Pfizer and Moderna.  There are so many noteworthy FOIA demands that we’ll return to this again next week. 

Read more here.

Court opinion issued Apr. 6, 2023

Court Opinions (2015-2023)Allan BlutsteinComment

Jordan v. DEA (D.D.C.) -- ruling that pro se prisoner’s request was improper because it essentially asked DEA to provide answers to questions plaintiff had about agency’s investigation, as opposed to asking for certain documents; rejecting plaintiff’s attempt to clarify and expand scope of his request to any records that pertained to his initial inquiries; and stating in dicta that if merits of the withholdings had been reached, agency’s categorical approach to withholding the names of all law enforcement agents under Exemption 7(C) would have been improper, despite the “substantial privacy” interests involved.

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

FOIA News: Reporters Committee Sunsets iFOIA Platform

FOIA News (2015-2023)Kevin SchmidtComment

We’re sunsetting iFOIA. Here’s what you need to know.

Reporters Committee for Freedom of the Press, Apr. 5, 2023
The Reporters Committee for Freedom of the Press created iFOIA in 2013 to provide people a simpler way to create, file, and manage FOIA requests. We’re proud to share that since its creation, thousands of users have filed more than 11,000 public record requests and exchanged tens of thousands of communications with government agencies through iFOIA.

We’re not software developers or engineers — we’re attorneys, and the need for legal services is only growing.
For that reason, the Reporters Committee is sunsetting iFOIA as of August 2023. No new requests can be submitted as of April 30, 2023.

We will send you a monthly reminder about the retirement, through July, and iFOIA will be retired in August. If you have any questions about this process, please email ifoia@rcfp.org.

Court opinion issued Apr. 4, 2023

Court Opinions (2015-2023)Allan BlutsteinComment

O'Brien v. DOJ (3rd Cir.) -- summarily affirming district court’s decision concerning FBI’s investigatory records concerning plaintiff (a former physician convicted of multiple drug-related charges), noting that source’s trial testimony did not waive government’s ability to withhold records pursuant to Exemption 7(D).

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

FOIA News: CFPB Says MoneyGram Can't Sue Over FOIA Its Atty Filed

FOIA News (2015-2023)Kevin SchmidtComment

CFPB Says MoneyGram Can't Sue Over FOIA Its Atty Filed

By Jon Hill, Law360, Apr. 4, 2023

The Consumer Financial Protection Bureau has moved for dismissal of a MoneyGram International Inc. lawsuit accusing the agency of stonewalling a potentially damaging public records request, telling a D.C. federal court that the money services giant can't sue over a request that it didn't itself file.

Read more here (subscription).

See copy of complaint here.

See copy of the request here.

FOIA News: Chief FOIA Officers Council to meet 4/25

FOIA News (2015-2023)Allan BlutsteinComment

Virtual meeting of the Chief FOIA Officers Council

DOJ/OIP, FOIA Post, Mar, 28, 2023

The Office of Information Policy (OIP) is pleased to announce that the Chief FOIA Officers (CFO) Council will hold a virtual meeting on Tuesday, April 25, 2023 from 10:00 AM to 11:30 PM EST.     

The CFO Council meeting is open to all agency FOIA professionals and members of the public.  Time will be provided for members of the public to address the Council.  Registration is required on Eventbrite if you wish to provide oral comments.  All attendees must register by 11:59pm (EST) on Sunday, April 23, 2023.  The meeting will also be livestreamed on the National Archives' YouTube channel

In accordance with the FOIA Improvement Act of 2016, the Chief FOIA Officers Council is tasked with developing recommendations, sharing best practices, and developing and coordinating initiatives to improve agency FOIA administration.  The Council is co-chaired by the Directors of OIP and OGIS and is comprised of each agency Chief FOIA Officer and the Deputy Director for Management of the Office of Management Budget.

Do you have ideas for future meeting topics and potential panelists?  Please email us at DOJ.OIP.FOIA@usdoj.gov. 

Court opinions issued Mar. 31, 2023

Court Opinions (2015-2023)Allan BlutsteinComment

Deep Sea Fishermen's Union of the Pac. v. U.S. Dep't of Commerce (W.D. Wash.) -- in most relevant part, finding that agency demonstrated the adequacy of its search for records located on personal devices and agency cell phones by searching agency’s email accounts to which employees were required to send them by existing policy.

Am. Civil Liberties Union v. DHS (D.D.C.) -- determining that plaintiff was not required to submit a separate request to the agency’s Office of Inspector General concerning COVID measures in immigration facilities (including complaints and grievances), but rather that agency’s Privacy Office should have forwarded plaintiff’s request to OIG based on nature of the request or, at the very least, after clear leads developed during agency’s search that OIG likely maintained responsive records.

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

Court opinions issued Mar. 30, 2023

Court Opinions (2015-2023)Allan BlutsteinComment

Gandhi v. Ctrs. for Medicare & Medicaid Servs. (D.D.C.) -- ruling that: (1) agency improperly relied on Exemption 4 to withhold employer identification numbers (EINs) of health care organization and taxpayer identification numbers (TINs) of their parent organizations, noting that SEC and Department of Labor release EINs to the public and that EINs are available through “pay-for-subscription” services; further noting that CMS failed to offer providers any assurances of confidentiality for their EINs or TINs, and that CMS offered no competent evidence that a foreseeable harm would occur if the requested records were released; and (2) agency’s reliance on Exemption 6 to withhold the same information was likewise improper, because Exemption 6 did not protect privacy interests of business entities.

Del Cid v. EOIR (D.D.C.) -- concluding that plaintiff was ineligible for award of attorney’s fees and costs because he did not prove that his lawsuit was the catalyst behind EOIR’s production of his immigration records; pointing out that agency demonstrated that it had started to process plaintiff’s request before plaintiff filed his lawsuit and that agency’s FOIA backlog and the COVID-19 pandemic delayed its final response.

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