Court opinion issued Nov. 15, 2023

Kilmer v. U.S. Customs & Border Prot. (D.D.C.) -- on renewed summary judgment, ruling that: (1) CBP adequately addressed the court’s earlier concerns regarding the agency’s search for certain communications about the ‘Women’s March” in 2017; and (2) CBP properly withheld records pursuant to Exemptions 5 (deliberative process privilege), 6, 7(C), and 7(E). In reaching its decision, the court rejected plaintiff’s argument that because CBP had certain enforcement powers, the agency’s search and withholdings should be reviewed under a “strict scrutiny” standard.

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

FOIA News: Recap of CFO Council meeting

Chief FOIA Officers Meeting Recap

By NARA/OGIS, FOIA Ombudsman, Nov. 16, 2023

The Chief FOIA Officers Council (CFOC) met on November 9 to discuss a variety of topics of interest to Chief FOIA Officers and FOIA professionals. Deputy Archivist of the United States, Debra Steidel Wall, and Associate Attorney General of the United States, Vanita Gupta, offered opening remarks to the attendees. You can view the entire meeting on the National Archives YouTube channel. Below is a recap of the meeting. 

• Deputy Assistant Secretary for Global Information Services at the U.S. State Department, Eric Stein, provided a brief overview of two artificial intelligence (AI) or machine learning pilots launched at the State Department in the last year. One was on declassification review and the second on processing FOIA requests. 

Read more here.

FOIA News: FOIA backlogs can be reduced with E-discovery, says VP of E-discovery firm

The government’s FOIA policy changes are adding to work levels and requests — but e-Discovery can help

By Amy Hilbert, Casepoint LLC, NextGov/FCW, Nov. 15. 2023

The federal government is working to improve the Freedom of Information Act (FOIA) — making it easier to access public records. Attorney General Merrick Garland issued new FOIA guidelines in March, and the Office of Information Policy has updated its FOIA self-assessment toolkit to assist agencies in conducting self-assessments of their FOIA programs.

However, this has led to a growing strain on the staff and budgets of the government agencies and departments that need to comply with FOIA requests.

Read more here.

FOIA News: Nuclear board to amend its FOIA regulations

The Defense Nuclear Facilities Safety Board has proposed to amend its FOIA fee schedule and four subsections of its fee regulation, according to a notice scheduled to be published in the Federal Register on November 15, 2023. The agency will accept public comments for 30 days.

FOIA News: CFO Council meeting

A recording of the Chief FOIA Officers Council meeting that took place on November 9, 2023, is available online here. It is approximately one hour and 45 minutes long.

FOIA News: FOIA Advisory Commitee meeting on Dec. 7th

The National Archives and Records Administration announced that the federal FOIA Advisory Committee will meet virtually on December 7, 2023, from 10 a.m. to 1 p.m. More details are available in the Federal Register notice published on November 7, 2023. Meeting materials will be posted by the Office of Government Information Services here.

Court opinions issued Nov. 6, 2023

Contreras & Metelska v. ICE (D. Minn.) -- ruling that agency properly relied on Exemptions 3, 5, 6, and 7(C) to redact emails of ICE’s local chief counsel regarding his “no contact” policy with plaintiffs; rejecting plaintiff’s claims that agency’s alleged discriminatory conduct or its release of previously withheld records constituted bad faith warranting additional review of disputed documents.

NY Times v. DOJ (S.D.N.Y.) -- granting government’s motion for reconsideration in case involving records of FBI’s “use of spyware and other digital surveillance products from the Israeli technology company”; finding that government’s supplemental declaration regarding Exemptions 1, 3, and 7(E) was sufficient to sustain withholdings. but cautioning that “this ruling should in no way be construed as approving the Government's failure to effectively support its litigation positions in its summary judgment briefing.”

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

Court opinion issued Nov. 1, 2023

Guarascio v. FBI (D.D.C.) -- in case concerning records of plaintiff’s conviction for manufacturing child pornography, concluding that: (1) although FBI processed and released requested records, FBI failed to show that plaintiff lacked standing to challenge his FOIA/Privacy Act waiver; (2) FBI’s search was inadequate “because it did not aver that it searched all files that are likely to contain responsive materials”; (3) plaintiff was not entitled to a waiver due to indigency or any alleged improprieties in his criminal case, and he failed to show that public interest would be served by disclosure; and (4) FBI properly withheld records pursuant to Exemptions 3, 6, and 7(C), but it did not establish that Exemption 7(D) protected all investigatory records received from a state law enforcement agency.

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

FOIA News: Reminder of Chief FOIA Officers Council meeting

The Chief FOIA Officers Council will meet on Thursday, November 9, 2023, from 10:00 AM to 12:30 PM. To present oral comments during the meeting, the public must register by Tuesday at 11:59 PM. The meeting will also be livestreamed. See more details here.

FOIA News: Air Force FOIA requests may be limited to "clearly releasable" information

First Amendment Advocates Say Air Force Tweak to Public Records Request Process 'Very Troubling'

By Thomas Novelly, Military.com, Oct. 27, 2023

A new change to the Air Force's Freedom of Information Act submission portal, asking whether individuals seeking public information from the service would agree to accept only "clearly releasable" information, is alarming First Amendment advocates and government watchdogs.

Military.com discovered the change to the service's portal this month when submitting what's called a FOIA request for government documents that could be used for news reporting and are legally required to be made public upon request. A newly added question asks the filer to check "yes" or "no" and agree in advance to potential redactions of information before submitting their form online.

Read more here.

[P.S. At least two components of the U.S. Navy also employ the same process, namely the the Office of Naval Research and the Naval Sea Systems Command.]