Court opinions issued Jan. 2, 2024

Checksfield v. IRS (N.D.N.Y.) -- concluding that agency properly invoked Exemption 3, in conjunction with 26 U.S.C. § 6103, in response to plaintiff’s request for personal and business tax returns of third party.

Curry v. FBI (D.D.C.) -- ruling that FBI’s supplemental briefing adequately justified the agency’s withholdings pursuant to Exemptions 3 (Bank Secrecy Act), 7(A), and 7(E), which pro se plaintiff did not oppose.

Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.

FOIA News: Agencies Not Keeping Up with FOIA Requests, Report Shows

Agencies Not Keeping Up with FOIA Requests, Report Shows

By Staff, FEDweek, Jan. 3, 2024

A backlog of Freedom of Information Act requests pending at federal agencies “continues to persist, indicating that agencies are not keeping pace with the number of requests received” despite increasing use of exemptions that allow agencies to simply deny requests, the Congressional Research Service has said.

The backlog grew from about 131,000 to about 207,000 over fiscal 2018-2022, it said, despite 2014 recommendations from a special advisory committee of the National Archives and Records Administration to address backlog issues such as including FOIA performance standards in employee appraisals, centralizing FOIA request processing, and adding support staff.

Read more here.

FOIA News: “AI is in everything these days”

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.

FOIA News: CRS updates FOIA fact sheet

On December 22, 2023, the Congressional Research Service updated a three-page report entitled “The Freedom of Information Act (FOIA): An Introduction.”

Q&A: Educational excellence?

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.  

Court opinion issued Dec. 28, 2023

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.

Court opinion issued Dec. 22, 2023

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.

Court opinion issued Dec. 21, 2023

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.

FOIA News: Federal Reserve banks adopt records disclosure policy

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.

Court opinion issued Dec. 20, 2023

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.