FOIA News: OMB to amend FOIA and Privacy Act regulations

The Office of Management and Budget will amend both its Privacy Act and FOIA regulations, “notably with regard to identity verification,” according to a proposed rule published in the Federal Register on December 20, 2023. Comments will be accepted through January 19, 2023.

Court opinions issued Dec. 19, 2023

Am. Civil. Liberties Union of Mass. v. DHS (D. Mass.) -- following in camera review of disputed records, concluding that DHS properly relied on Exemption 7(E) to withhold portion of its “Criminal Gangs Investigations Handbook” that contained “detailed definitions and the specific criteria that [the agency] considers when identifying gangs, criminal activity, and gang members.”

Lindsay-Poland v. DOJ (N.D. Cal.) -- ruling that: (1) even if an appropriations rider protected certain firearms information pursuant to Exemption 3, an exception to that rider permitted disclosure of certain “statistical aggregate data” to plaintiff because he was a news media representative or the functional equivalent; and (2) agency failed to adequately show that release of zip code data would violate the privacy of certain licensees and fall outside the bounds of “statistical aggregate data.”

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

FOIA News: OGIS wish list diplomatically omits "a bigger budget"

OGIS 2023 Holiday Wish List

By Office of Gov’t Info. Serv., FOIA Ombudsman, Dec. 20, 2023

Last year we shared our OGIS Holiday Wish List here on The FOIA Ombudsman. The jolly man from the North Pole did not bring us our wishes, so we are revising it to reflect upon what OGIS has encountered over the past year. As we look to 2024 these wishes would go a long way toward improving the FOIA processes for both requesters and agencies. 

Read more here.

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.