Court opinion issued Jan. 16, 2024

Bloomberg v. FTC (D.D.C.) -- ruling that: (1) FTC properly withheld all but three portions of its preconsummation warning letters pursuant to Exemption 3, in conjunction with 15 U.S.C. § 18a(h), specifically the identities of business filers that were already in the public domain, the dates of the warning letter; and boilerplate language; and (2) agency failed to show that Exemption 7(A) protected any of the three portions of the disputed letters set forth above.

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

FOIA News: Hear ye! Hear ye!

The U.S. Supreme Court will hear oral arguments today in two companion (non-FOIA) cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Dep’t of Commerce, each of which challenge the Chevron doctrine. We mention this because FOIA Advisor’s own Ryan Mulvey represents the appellants in the former case and has a ringside seat at counsel’s table this morning. Congratulations, Ryan!

Listen to the arguments in real time here.

Court opinion issued Jan. 12, 2024

Children’s Health Def. v. FDA (D.D.C.) -- granting six-month Open America stay (with possibility of extension) in case concerning records of safety monitoring of COVID-19 vaccines, because agency faced “exceptional circumstances” from an “extraordinary production obligation” imposed by a Texas federal court—specifically 75,000 pages per month in January 2024 and 180,000 pages per month thereafter in response to a FOIA request related to Moderna’s adult COVID-19 vaccine.

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

Court opinion issued Jan. 9, 2023

Cato v. FBI (D.D.C.) -- concluding that plaintiff was entitiled to relief from court’s judgment because of “newly discovered evidence” concerning the adequacy of FBI’s search, namely an FBI declaration filed in a 2018 case that contradicted the FBI’s position in the instant case regarding the agency’s Central Records System; reasoning, in part, that the public availability of FBI’s 2018 declaration on PACER was not fatal to plaintiff’s motion, because the declaration was not discoverable by a reasonably diligent search.

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

Court opinion issued Jan. 8, 2024

Kayll v. DHS (D.D.C.) -- ruling that U.S. Customs & Border Protection did not possess or control records in a State Department database relating to visa applications, even though CBP inputted information into that database about plaintiff; in reaching its decision, the court noted its concern that a contrary ruling would allow requester to circumvent the confidentiality provisions of 8 U.S.C. § 1202(f).

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

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.