FOIA News: HUD Refuses To Release Secretary Marcia Fudge's Email Address

HUD Refuses To Release Secretary Marcia Fudge's Email Address in Response to Reason FOIA Request

By C.J. Ciaramella, Reason, Jan. 9, 2024

Want to know Department of Housing and Urban Development (HUD) Secretary Marcia Fudge's government email address? Too bad, it's a secret.

In response to a Freedom of Information Act (FOIA) request from Reason, HUD released a list of email addresses for all political appointees—with two exceptions. The agency redacted HUD Secretary Marcia Fudge and Deputy Secretary Adrianne Todman's addresses, citing an exemption from releasing any records that would "constitute a clearly unwarranted invasion of personal privacy."

Read more here.

Commentary: 2023 FOIA news in review

As 2024 gets underway, the FOIA Advisor staff is pleased to provide a summary of the most notable FOIA developments that occurred outside the courtroom in 2023. We will discuss our top 2023 court decisions in a forthcoming post.

Legislation

The 118th Congress is off to a historically slow start, passing fewer than two dozen bills in its first year—none pertaining to the Freedom of Information Act. Several attempts were made, however.

• On February 16, 2023. U.S. Senator Marco Rubio (R-FL) reintroduced the First Opportunity for Information to Americans Act of 2023. First introduced in June 2022, this legislation would bar agencies from releasing FOIA-requested records to foreigners and certain foreign entities.

• On March 30, 2023, U.S. Senators Thomas Tills (R-NC) and Elizabeth Warren (D-MA) and others re-introduced the Financial Regulators Transparency Act of 2023, which would extend the FOIA to regional Federal Reserve banks. On December 21, 2023, the reserve banks announced that they had voluntarily adopted a policy for public requests for information effective January 1, 2024

• On June 6, 2023, U.S. Senators Chuck Grassley (R-Iowa), Dianne Feinstein (D-Calif.), and Peter Welch (D-Vt.) introduced the Open and Responsive Government Act, which aimed to restore Exemption 4’s National Parks test for confidential commercial information. The bill also attempted to reinforce the law’s presumptions of openness and transparency by underscoring any information outside of the scope of FOIA’s nine exemptions should be publicly available. 

• On June 14, 2023, Congressman Jamie Raskin (MD-08) and Senator Ben Cardin (D-MD) introduced the Private Prison Information Act of 2023, which would require all U.S. government agencies comply with FOIA requests relating to private prisons, jails or detention facilities, including immigration detention facilities.

• On June 27, 2023, a House appropriations bill for the Department of Defense was introduced that would prohibit the disclosure of certain records of service members without their consent. See Sec. 8139. The bill passed the House on September 28, 2023.

Regulatory updates

By our count, four agencies proposed changes to their FOIA regulations in 2023 that have not yet been finalized: Defense Nuclear Facilities Safety Board; Office of Management and Budget; Peace Corps; and the Postal Regulatory Commission.

Seven agencies issued final rules amending their FOIA regulations in 2023: Department of Commerce; Department of Defense; Department of State; EPA, Office of the Director of National Intelligence; Office of the Intellectual Property Enforcement Coordinator (EOP); and th Office of the.United States Trade Representative

Federal FOIA Advisory Committee

On June 8, 2023. the Federal FOIA Advisory Committee unanimously recommended that DOJ’s Office of Information Policy “issue guidance stating that whenever an agency withholds information pursuant to Exemption 5, the agency should identify the corresponding privilege(s) invoked.” The Committee is expected to vote on additional recommendations before the end of its term in June 2024.

Other agency updates

• The Department of Justice announced on March 2, 2023, that federal agencies had received a record-high total of 928,316 requests in fiscal year 2022.

• On March 13, 2023, nearly one year after the Attorney General issued a customary FOIA memorandum, DOJ’s Office of Information Policy released guidelines concerning the foreseeable harm standard enacted in 2016 and applying a presumption of openness.

• FOIAonline, a request platform operated by the EPA, was decommissioned on September 30, 2023. At its height, 22 agencies used the platform. See related article here.

• In October, the Department of Justice added a search tool to FOIA.gov that “helps the public more quickly locate commonly requested information.”

Interesting stories

We generally do not feature stories about the filing of FOIA requests or lawsuits, or stories that are based on records obtained via FOIA. But some are too quirky or consequential to ignore. Here are a few that captured our attention in 2023.

• JPat Brown, Bush’s Cake and FOIA Red Tape: A Whimsical Look at a Serious Transparency Issue, WhoWhatWhy, Oct. 15, 2023.

• Kris Maher, Three Men Battle the FBI Over Buried Civil War Gold. ‘Stuff Just Doesn’t Add Up,’ Wall St. J., Aug. 5, 2023.

• John Jenkins, Riding the Ozempic Wave, Law St. Media, May 3, 2023.

• Olivia Beavers, GOP lawmakers seek investigation of ‘unauthorized’ disclosure of their Air Force records, Politico, Feb. 21, 2023.

Court opinions issued Jan. 5, 2023

Freedom Coal. of Doctors for Choice v. CDC (N.D. Tex.) -- determining that plaintiff’s request for 7.8 million free-text responses to agency’s COVID-19 vaccine safety monitoring system would not be unreasonably burdensome for agency to process, because: (1) the volume of the responsive texts would yield between as little as 83 thousand pages and at most 650 thousand pages; (2) CDC conceded that 93 percent of the responses would require no redaction at all; and (3) any necessary redactions of personal identifying information pursuant to Exemption 6 would be “simple” and “capable of automated assistance.”

Project for Privacy & Surveillance Accountability. v. NSA (D.D.C.) -- deciding that: (1) agencies were permitted to issue Glomar responses before conducting searches for requested records of the intelligence community’s acquisition and use of commercially available information pertaining to named Congressmen and former Congressmen; (2) agencies properly relied on Exemptions 1 and 3 in refusing to confirm or deny existence of “operational documents,” but were required to conduct a search for “policy documents.”

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

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.