FOIA, AI and the State Department
State Department pilots AI FOIA decision-making
By Max Eichelberger, Maximum Disclosure, Jan 2, 2024
I try to keep the substack on a few distinct topics: FOIA litigation, historically significant disclosures, and even a few practice pointers. AI is not one the subjects, but AI is in everything these days. Recently, the subject of AI came up at the Chief FOIA Officers Council meeting.
Read more here.
On December 22, 2023, the Congressional Research Service updated a three-page report entitled “The Freedom of Information Act (FOIA): An Introduction.”
Q. My client has a complaint against the Department of Education for a pattern and practice of violating FOIA deadlines. My client's request received a response stating that it would take 185 days on average to respond. Can you share other complaints of slow responses from the Department of Education?
A. If you’d like to find copies of the FOIA lawsuits filed against the Department of Education, a great resource is The FOIA Project. On its home page, navigate to the “FOIA Lawsuits” tab on the top banner and you can search for complaints in a variety of ways, including by the defendant agency.
Nat'l Press Club Journalism Inst. v. USCIS (D.D.C.) -- ruling that: (1) both USCIS and ICE conducted adequate searches for records concerning a Mexican journalist and his son, but not with respect to records of “mechanisms used to limit or block phone calls” at ICE’s El Paso facilities”; (2) ICE’s Vaughn Index and declarations were inadequate to justify its withholdings pursuant to Exemption 5 (deliberative process and attorney-client privileges) and Exemptions 6 and 7(C); and (3) ICE was entitled to reprocess documents that it inadvertently disclosed to plaintiff, but declining to limit plaintiff’s use of inadvertently disclosed documents because ICE had “not moved for any relief whatsoever on this front.”
Summaries of all published opinions issued since April 2015 are available here.
Ctr. For Investigative Reporting v. DOL (N.D. Cal.) -- concluding that DOL improperly withheld EEO-1 reports pursuant to Exemption 4 after deciding—over the objections of six representative federal contractors—that: (1) the workforce demographic data contained within those reports did not qualify as “commercial”; (2) such data was not independently protected by the Trade Secrets Act; and (3) whether the data was “confidential” was a moot issue, as was the foreseeable harm test.
Summaries of all published opinions issued since April 2015 are available here.
Magassa v. TSA (D.C. Cir.) (unpublished) -- affirming district court’s decision that: (1) TSA properly withheld security screening records concerning plaintiff pursuant to Exemption 3 in conjunction with 49 U.S.C. § 114(r); (2) TSA properly relied on Exemption 6 to withhold names of certain TSA agents associated with screening plaintiff; (3) agency performed adequate search in response to plaintiff’s request; and (4) plaintiff could not challenge agency’s Glomar response as to whether plaintiff appeared on terrorist watch lists, because he failed to raise the issue in his administrative appeal.
Summaries of all published opinions issued since April 2015 are available here.
Fed’s 12 regional banks adopt records transparency policy
The policy, released by the New York Fed, will be effective Jan. 1 and “seeks to simplify and standardize the Federal Reserve Banks’ public information request process,” the central bank said.
By Rajashree Chakravarty, Banking Dive, Dec. 22, 2023
The 12 regional Federal Reserve banks announced Thursday the adoption of a new common policy promoting transparency and accountability for media and public records requests, effective Jan. 1, 2024.
Unlike the Fed’s Board of Governors, which falls under the U.S. government’s purview, the Fed’s regional banks have not previously been subject to Freedom of Information Act requests.
The policy released by the New York Federal Reserve noted that, unless otherwise exempt, records created on or after Jan. 1, 2024, “will be published or provided upon request.”
Read more here.
Muzumala v. FBI (S.D.N.Y.) -- finding that: (1) FBI timely responded to plaintiff’s request by regular mail to plaintiff’s last known address, rejecting plaintiff’s argument that he was entitled to a response via email; (2) FBI performed a reasonable search for records concerning plaintiff, who provided no evidence that agency had responsive records; and (3) U.S. Immigration and Customs Enforcement performed adequate search for records concerning plaintiff and properly withheld certain records pursuant to Exemption 3 in conjunction with 49 U.S.C. § 114(r), as well as Exemptions 6, 7(C), and 7(E).
Summaries of all published opinions issued since April 2015 are available here.
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.
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.