Court opinion issued Oct. 17, 2023

BuzzFeed v, DOJ (D.D.C.) -- deciding that: (1) FBI properly relied on Exemption 4 to withhold certain emails discussing DNA forensic assistance for pending FBI investigations, noting that agency demonstrated that disclosure could cause foreseeable financial harm to genetic testing companies; (2) FBI properly invoked Exemption 7(A) to withhold records about reasonably anticipated enforcement proceedings that, if disclosed, would reasonably likely to interfere with future criminal cases; (3) FBI properly relied on Exemption 7(C) to withhold the identities of law enforcement personnel and third parties; and (4) FBI’s properly used Exemption 7(E) to withhold companies’ forensic law enforcement capacities and forensic genealogy testing innovations and advancements, as well as details on evidence collection and evidence gathered for pending investigations.

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

FOIA News: House proposes declassification reform

Spanberger, Wenstrup Introduce Bipartisan, Bicameral Bill to Reform Security Classification System

The “Sensible Classification Act” Would Codify Classification Authority, Streamline Declassification Process, Invest in New Technology for Classification Reviews, & Require an Evaluation of Existing Security

Rep. Abigail Spanberger, Press Release, Oct. 17, 2023

WASHINGTON, D.C. — U.S. Representatives Abigail Spanberger (D-VA-07) and Brad Wenstrup (R-OH-02) — Members of the U.S. House Permanent Select Committee on Intelligence — today introduced bipartisan legislation to reform and modernize the security classification system to reduce overclassification, prevent mishandling of classified information, promote better use of intelligence, and strengthen public trust.

The Sensible Classification Act would undertake significant reforms to the classification process. The bipartisan bill would codify classification authority, streamline the processes for declassification, direct training focused on sensible classification, invest in new technology to modernize the classification system, and direct a review regarding the necessity of existing security clearances to identify potential areas for additional reforms.

Read more here.

FOIA News: State Department finalizes FOIA regulations

The U.S. Department of State has completed its FOIA rulemaking that began in March 2020, according to a final rule scheduled to be published in the Federal Register on October 18, 2023. The regulatory amendments will become effective on November 17, 2023.

Court opinion issued Oct. 13, 2023

Yim v. NIH (3rd Cir.) -- affirming district court’s decision that agency performed a reasonable search for records reflecting any updates to the COVID-19 treatment guidelines endorsed by a vote of a panel of experts; rejecting as speculation plaintiff’s assertion that the expert panel never actually voted on a guideline recommendation about which NIH had produced records.

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

FOIA News: CFO workshop on Oct. 25

Workshop on Using, Sharing Resources Set for October 25

Office of Gov’t Info. Serv., FOIA Ombudsman, Oct. 16, 2023

Federal government employees are invited to a Chief FOIA Officers (CFO) Council best practices workshop from 9:30 a.m. to 12:30 p.m. on Wednesday, October 25. The Council’s Committee on Cross-Agency Collaboration and Innovation (COCACI) Resources Working Group is hosting  the virtual workshop on “Innovative Methods for Using and Sharing Resources.” Registration is required and is limited to those with a .gov or .mil email address. 

Read more here.

FOIA News: Let them eat cake

Bush’s Cake and FOIA Red Tape: A Whimsical Look at a Serious Transparency Issue

The practice of actually using the laws intended to promote transparency illustrates just how broken the process of legal disclosure can be.

By J. Pat Brown, WhoWhatWhy, Oct. 15, 2023

Government transparency earned a rare victory this week. Arkansas’s Gov. Sarah Huckabee Sanders’s attempts to strongly restrict her state’s Freedom of Information law received strong pushback, and may even result in that state enshrining transparency in its constitution. But while public support for the right to know as a concept is always a good thing, the practice of actually using the laws as intended illustrates just how broken the process of legal disclosure can be.

By way of illustration, consider this brief account of an early foray of my own.

The year 2016 was one of milestones for me: I got married, I turned a decade older, and I filed a public records request for photos of former President George W. Bush with cake. “Birthday or otherwise,” as the request clarified. 

Read more here.

FOIA News: Opinion Piece Says "It’s Time To Overhaul FOIA"

It’s Time To Overhaul FOIA

By Curtis Schube & Gary Lawkowski, RealClearPolitics, Oct. 16, 2023

When it comes to the federal government and responding to Freedom of Information Act (FOIA) requests, it is so commonplace for federal agencies to drag their feet and not provide fully responsive documentation that it is not even newsworthy when those agencies do not comply with the law.

* * *

To this effect, we have identified a series of reforms that attempt to change agency incentives at the individual level, reduce backlogs for the most frequently requested records, and impose uniformity where there is arbitrary decision-making.       

One such mechanism is a dramatic expansion of proactive disclosure obligations to include the administrative record (which provides the rationale for government decisions), senior officials’ calendars and external communications (which shows outside influences on their actions), ethics records (which show potential conflicts of interest), and settlement agreements (which show the details of settlements between government and public interest groups). All of these records are vital to transparency and are a source of burden for the agencies (both in the search and production phases, as well as in the often unavoidable litigation phase). To be successful, agency compliance must be automatic and not subject to record custodians’ whims or bureaucrats’ prioritization with other incoming requests or duties.

Read more here.

Court opinion issued Oct. 12, 2023

Louise Trauma Ctr. v. DOJ (D.D.C.) -- on renewed summary judgment and following in camera review, concluding that DOJ’s Office of Immigration Litigation properly withheld some, but not all, presentation slides pursuant to Exemptions 5 and 6. Of note, the court chided DOJ for failing to cite Exemption 6 in its Vaughn Index despite being instructed to do so in its prior opinion.

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

Court opinion issued Oct. 2, 2023

Stevens v. HHS (N.D. Ill.) -- determining in relevant part that: (1) EOIR could not deny requests seeking all records about certain third parties as unreasonably described, because plaintiff included requests for more specific items and EOIR did not assert that a search would require unreasonable effort; and (2) plaintiff’s request for screenshots of certain information contained in an agency database was readily reproducible and would not constitute the creation of new records.

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

FOIA News: IRS using contractor for FOIA identity verification

IRS Has Rolled Out Identity Proofing for FOIA Requests

By Lauren Loricchio, Tax Notes, Oct. 2, 2023

The IRS has quietly rolled out identity proofing for Freedom of Information Act requests submitted through its online portal, a development that some transparency advocates find concerning.

The agency’s FOIA public access portal now says it is using a “sign on system that requires identity verification.” According to the site, users with accounts set up before June 26, 2023, will have to register or sign in through ID.me, a third-party contractor that provides verification services for the IRS and other government agencies.

Requesters can choose a self-serve ID-proofing option that requires a government-issued ID and selfie or may opt for a video call with an ID.me representative, which doesn’t require the submission of biometric data.

Read more here (accessible with free trial).