FOIA News: Nominate the worst agency of 2023

There’s still time to nominate an agency for the “Foilies,” to shine light on those who are involved in all sorts of transparency-thwarting.

Court opinion issued Dec. 15, 2023

Voice of San Diego v. NCIS (S.D. Cal.) -- determining that: (1) Navy performed adequate search for records concerning its investigations into suicides of certain service members; and (2) government’s explanations for privacy withholdings in the Vaughn Index were too “boilerplate and conclusory” to permit the court to conduct required balancing test; noting that government’s terse descriptions nonetheless suggested that “substantial privacy interests” were at stake, and that court harbored doubt that plaintiff could show an overriding public interest in disclosure.

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

Court opinions issued Dec. 7 & 13, 2023

Dec. 13, 2023

Ulis v. FBI (D.D.C.) -- ruling that FBI properly refused to release the clip-on necktie of D.B. Cooper, because tangible objects are not reproducible and do not qualify as agency records.

Dec. 7, 2023

Nagdy v. DOJ (W.D. Ky.) -- dismissing plaintiff’s claim against FBI because he failed to administratively appeal from the agency’s response to his request for records concerning his state-court criminal case.

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

FOIA News: D.B. Cooper's Clip On Tie Not an Agency Record

D.B. Cooper's Clip On Tie

By Legal Profession Prof, Legal Profession Blog, Dec. 14, 2023

The United States District Court for the District of Columbia (Judge Cobb) denied a FOIA request, holding that D.B. Cooper's removed tie is not an "agency record."

Holding

For this case, however, it suffices to say that to call a clip-on necktie an “agency record” is not reasonable.

Read more here.

Read the decision here.

FOIA News: Chief FOIA Officers Council Meeting Showcases the Use of Advanced Technologies in FOIA

Chief FOIA Officers Council Meeting Showcases the Use of Advanced Technologies in FOIA

Office of Information Policy, Dec. 14, 2023

The Chief FOIA Officers (CFO) Council met virtually on November 9, 2023.  Associate Attorney General of the United States Vanita Gupta welcomed attendees, thanked agencies for their work on FOIA reporting, and highlighted the new Search Tool on FOIA.gov that will improve the public’s ability to search for previously released FOIA records and to identify appropriate agencies for new FOIA requests.  In previewing the agenda, the Associate Attorney General highlighted the use of technology such as artificial intelligence (AI) to increase automation in record processing as an emerging and promising area, but emphasized the importance of ensuring that there is sufficient human monitoring and that appropriate safeguards are established so that the government is operating consistent with our obligations under FOIA.  Deputy Archivist Debra Steidel Wall from the National Archives and Records Administration also welcomed attendees and emphasized the importance of FOIA as a crucial part of ensuring transparency and accountability.

Read more here.

FOIA News: High on Exemption 5

HHS Releases Highly Redacted Rescheduling Letter to DEA: An Analysis of Exemption 5 to FOIA

By Agustin Rodriquez et. al., Troutman Pepper, Dec. 12, 2023

* * *

The Department of Health and Human Services (HHS) recently drew the ire of transparency advocates when it heavily redacted a recommendation letter to the head of the Drug Enforcement Administration (DEA) concerning the rescheduling of cannabis,[3] citing Exemption 5 as justification.[4] This decision has prompted questions about the appropriate use of redactions in FOIA requests, as redactions have become a battleground for debates over the balance between necessary secrecy and the public’s right to government information. In this blog post, we will discuss Exemption 5 of FOIA and evaluate its applicability to HHS’s redaction of the bulk of the rescheduling recommendation letter.

Read more here.

FOIA News: Artificial intelligence takes on FOIA exemptions

On December 10, 2023, the journal Artificial Intelligence and Law published a paper describing “a novel deliberative-language detection model . . . , the FOIA Assistant, that ingests documents responsive to an open-records requests, suggests passages likely to be subject to deliberative language, privacy, or other exemptions, and assists analysts in rapidly redacting suggested passages.”

See more here.

FOIA News: FOIA Advisory Committee meeting

The Freedom of Information Act Advisory Committee met for seventh time during the 2022-2024 term on December 7, 2023. Meeting materials are available here. A video of the remote meeting, which ran for three hours, is available here.

Court opinion issued Dec. 5, 2023

Chohan v. U.S. Dep't of State (D.D.C.) -- ruling that agency properly relied on Exemption 3, in conjunction with 8 U.S.C. § 1202(f) (Immigration & Nationality Act), to withhold records pertaining to agency’s denial of plaintiff’s visa applications.

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

FOIA News: DoD Finalizes Amendments to FOIA Regulations

The Department of Defense published a rule in the Federal Register amending its FOIA regulations. The rule goes into effect on January 4, 2024 and DoD “determined that public comment is unnecessary before finalizing these amendments as they are administrative and are internal to DoD and the management of DoD's FOIA Program.”