Court opinion issued June 9, 2023

Schaerr v. Dep’t of Justice (D.C. Cir.) — affirming district court; concluding, based on circuit precedent, that an agency need not search for responsive records before invoking Glomar and refusing to confirm or deny the existence of records, as such information would itself be exempt under the FOIA; further holding that the defendant agencies had properly invoked Glomar in conjunction with Exemptions One and Three; rejecting requester’s claims of “bad faith” in rebutting agency affidavits because those “allegations [are] either too generalized or too attenuated from the specific classification decisions at issue[.]”

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

FOIA News: OIP launches redesigned website

OIP’s Redesigned Website Now Released

DOJ/OIP, FOIA Post, June 9, 2023

The Office of Information Policy (OIP) is pleased to announce the release of its redesigned website to align with the broader modernization of Justice.gov.  The redesigned page provides enhanced functionality to meet the requirements of the 21st Century Integrated Digital Experience Act and a new design based on the U.S. Web Design System.  

OIP’s site contains all the FOIA resources previously available, presenting them in a modernized design that is mobile-friendly.  Many pages, including OIP’s FOIA Library, have been reformatted for easier navigation and visibility of key information.  FOIA Post can now be accessed from anywhere on the site using the top navigation menu.  Key Dates that include upcoming trainings, events, and deadlines can be easily viewed and searched.  As the Attorney General’s 2022 FOIA Guidelines note, “agency FOIA websites should be easily navigable, and records should be presented in the most useful, searchable, and open formats possible.”  OIP looks forward to continuing to improve the organization and presentation of released materials and to make other updates to improve the user experience. 

See OIP’s original post here.

See website here

Court opinions issued June 1-2, 2023

June 2, 2023

Smolen v. FAA (S.D.N.Y.) -- deciding that: (1) FAA properly relied on Exemption 4 to withhold draft agreement between the agency and the National Air Traffic Controllers Association, and that it demonstrated reasonable foreseeable harm from disclosure; and (2) plaintiff failed to administratively appeal the adequacy of the agency’s search, but even if he had, agency’s search was adequate.

June 1, 2023

Sarama v. DEA (M.D. Fla.) -- concluding that: (1) plaintiff was eligible for attorney’s fees and costs because although DEA commenced search for certain records prior to lawsuit, it failed to process and disclose a mere 5 pages for a significant amount of time; (2) plaintiff was entitled to attorney’s fees and costs despite lack of public benefit on disclosure, because DEA’s response was unreasonable and plaintiff’s interest in disclosure was not commercial.

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

FOIA News: Judge gives US government one week to handle request for Prince Harry’s visa records

Judge gives US government one week to handle request for Prince Harry’s visa records

By Holmes Lybrand, CNN, June 6. 2023

A federal judge has given the Department of Homeland Security until next Tuesday to decide how it will handle a conservative think tank’s request for Prince Harry’s US immigration records.

The Heritage Foundation has asked the US government via the Freedom of Information Act to see his visa application, citing his admission of past recreational drug use in his memoir. The group is questioning whether immigration officials properly granted Prince Harry’s application, since admission of past drug use can be grounds to reject a visa application.

Read more here.

FOIA News: Senators re-introduce FOIA legislation to restore "National Parks" test

Grassley, Feinstein, Welch Reintroduce Bill To Restore FOIA Presumptions Of Openness, Transparency

Press Release, Office of Senator Charles Grassley, June 6, 2023

WASHINGTON – Sens. Chuck Grassley (R-Iowa), Dianne Feinstein (D-Calif.) and Peter Welch (D-Vt.) today introduced legislation to improve the public’s access to information and ability to hold the federal bureaucracy accountable.  

The Open and Responsive Government Act aims to restore an appropriate legal interpretation of the Freedom of Information Act (FOIA) Exemption 4 on confidential commercial information. The bill also reinforces the law’s presumptions of openness and transparency by underscoring any information outside of the scope of FOIA’s nine exemptions should be publicly available.  

Read more here.

Text of bill here.

FOIA News: DDC to hear FOIA argument tomorrow re: Prince Harry

On June 6, 2023, the U.S. District Court for the District of Columbia will entertain arguments as to whether the Heritage Foundation is entitled to expedited processing of its FOIA request to the U.S. Department of Homeland Security seeking access to the Alien File of Prince Harry, the Duke of Sussex. Copies of the docket and the shamefully long complaint are available here.

FOIA News: Commerce updates FOIA regs

The U.S. Department of Commerce has issued a final rule amending its FOIA regulations without public comment effective June 5, 2023. The amendments reflect changes related to the Department’s transition to a new FOIA case management system, correct cross-references to its FOIA regulations, and update the contact information for the Office of Inspector General.

FOIA News: Draft FOIA tech standards to be issued "early this summer" for public comment

DOJ OIP leads effort to set FOIA tool tech standards across government

By Jory Heckman, Fed. News Network, June 2, 2023 

The Justice Department’s Office of Information Policy is leading a governmentwide effort to set technology standards for tools agencies use to manage a growing volume of Freedom of Information Act (FOIA) requests.

DOJ OIP is leading an interagency working group setting standards for FOIA case management, along with National Archives and Records Administration’s Office of Government Information Service and the General Services Administration Office of Shared Services and Performance Improvement.

The working group expects to have a draft baseline version of the business standards available for public comment early this summer, and anticipates finalizing the business standards later this calendar year.

Read more here.

FOIA News: New OGIS resources

In case you missed it, the Office of Government Information Services has posted two new resources on its website. The first is an Ombuds Observer on the decommissioning of FOIAonline. The second resource is an Issue Assessment Recommendations and Best Practices table.

Read more here.

FOIA News: OGIS to hold annual meeting on June 13

On June 13, 2023, the Office of Government Information Services will hold an open meeting to discuss its reviews and reports, as required by the FOIA statute. Written comments for the meeting will be accepted 30 days before and 30 days after the meeting. Registration information and a livestream link are currently available here; the agenda and presentation slides are forthcoming.