Monthly Roundup: Jan. 2024

Welcome to our first “Roundup.” At the beginning of each month, we’ll highlight the FOIA activity we’ve observed in the previous month, just in case you missed it. Additionally, we’ll point out what’s ahead in the 4 to 5 weeks,

Court decisions: We posted 16 decisions in January. Of note, the court in Children’s Health Def. v. FDA (D.D.C.) reminded us that a plaintiff-friendly judge in the Northern District of Texas has paralyzed the FDA’s FOIA operations with what might be the most burdensome production schedule in the history of FOIA litigation (180k pages per month). The CDC also has been ensnared by the same district court, which recently held that it would not be unreasonably burdensome for the agency to process 7.8 million “free text” messages over the next 12 months. See Freedom Coal. of Doctors for Choice v. CDC (N.D. Tex.).

OGIS: On January 25th, in a blog post discussing the history of the Glomar response, OGIS inexplicably expressed its support for a FOIA Advisory Committee recommendation to eliminate that term from agency lexicons, notwithstanding opposition from DOJ and others.

DOJ: On January 23rd, OIP solicited nominations for Sunshine Week FOIA awards for agency personnel.

Other news: Requesters filed 59 lawsuits across the country in January, according data posted by the FOIA Project. The most frequent filer was the Center for Immigrations Studies, with five cases.

February lookahead:

• On February 6th, OIP will host an Advanced Freedom of Information Act training for federal employees and contractors. Despite being virtual, it is listed as “sold out.”

• On February 14th, the D.C. Circuit will hear oral argument in Cabezas v. FBI. We will post a reminder the day before.

• On February 16th, the D.C. Circuit will hear oral argument in Assassination Archives & Research Ctr. v. DOJ. We will post a reminder the day before.

• By the end of the month, we expect most agencies to have posted their annual FOIA reports for FY 2023, which are due no later than March 1st.

Job jobs jobs: Weekly posting 2/5/24

Welcome to our first weekly jobs report. The positions listed below entail full-time, or at least 50 percent, FOIA duties.

Federal positions closing in 10 days or less:

• Gov’t Info. Specialist, Dep’t of Veterans Affairs, Manchester, NH, GS 12, closes 2/5/24.

• Gov’t Info. Specialist, Veterans Health Admin (VHA)., Bronx, NY, GS 11-12, closes 2/5/24.

• Gov’t Info. Specialist, Def. Health Agency, Dover, DE, GS 7, closes 2/5/24.

• Supervisory Gov. Info. Specialist, IRS, Arizona, Alabama. Alaska, IR 6, closes 2/5/24.

• Gov’t Info. Specialist, Dep’t of Energy, Carlsbad, NM, GS 11, closes 2/6/24.

• Gov’t Info. Specialist, Dep’t of the Air Force, Lackland AFB, TX, GS 9, closes 2/7/24.

• Gov’t Info. Specialist, Envtl. Prot. Agency, Washington, DC, GS 13. closes 2/8/24.

• Gov’t Info. Specialist, Nat’l Science Found., Alexandria, VA, GS 14, closes 2/8/24.

• Att’y Advisor, Dep’t of the Interior, Office of the Solicitor, Remote, GS 13-14, closes 2/8/24.

• Gov’t Info. Specialist, Dep’t of the Army, Fort Knox, KY, GS 9, closes 2/8/24.

• Gov’t Info. Specialist, IRS, current employees only, GS 13, closes 2/9/24.

• Gov’t Info. Specialist/Ass’t Privacy Officer, VHA, Madison, WI, GS 7-9, closes 2/9/24.

• Gov. Info. Specialist, Dep’t of Transp., FAA, Multiple locations, FV 1, closes 2/13/24 (public).

• Gov. Info. Specialist, Dep’t of Transp., FAA, Multiple locations, FV 1, closes 2/13/24 (non-public).

Federal positions announced in past 7 days (if not listed above):

• Supervisory Att’y Advisor, Dep’t of Justice, Civil Division, Washington, D.C., GS 15, closes 2/16/24.

• Att’y Advisor, Dep’t of Justice, OIP, Washington, D.C., GS 12-14, closes 2/19/24.

FOIA News: More 2023 annual reports

We’re less than four weeks away from the March 1st deadline for agencies to post their annual reports for fiscal year 2023. The government’s overall performance will depend largely on the U.S. Department of Homeland Security, which received 58 percent of all FOIA requests in FY 2022. The Departments of Defense, Justice, and Health & Human Services were the next busiest agencies, receiving 10, 6, and 4 percent of all requests, respectively. Below are a few more reports we’ve found online..

American Battle Monuments Commission

Chemical Safety and Hazard Investigation Board (197 requests received; only 61 processed).

Department of Housing and Urban Development

Federal Election Commission

National Mediation Board

Office of Management and Budget

Social Security Administration (10130 requests received; 10305 processed)

U.S Agency for International Development

U.S. Railroad and Retirement Board

FOIA News: Here come the FY 2023 annual reports

Agencies are required to post their fiscal year 2023 annual FOIA reports online no later than March 1, 2024. We’ve started to look for early postings and here are a few that we’ve found. Stay tuned for more in the month ahead.

• Commission on Civil Rights

• Court Services and Offender Supervision Agency

• Commodities Future Trading Commission

• Farm Credit Administration

• Farm Credit System Insurance Corporation

• Federal Mine Safety and Health Review Commission

• Federal Energy Regulation Commission

• Merit Systems Protection Board

• National Aeronautics and Space Administration

• Nuclear Regulatory Commission

• Office of Government Ethics

• Peace Corps

• Pension Benefit Guaranty Corporation

• Securities and Exchange Commission (9481 requests received; 9022 processed)

• U.S. Postal Service (4168 requests received; 4104 processed)

• U.S. Trade Representative

Court opinions issued Jan. 29, 2023

Wilson v. FBI (2nd Cir.) -- affirming district court’s decision denying plaintiff attorney’s fees after finding no “abuse of discretion” in lower court’s analysis of relevant “entitlement” factors; noting that although plaintiff was “eligible” for fees because district court had ordered FBI to conduct an additional search for records concerning plaintiff, FBI’s original decision not to search a particular database was reasonable given that no responsive records were located.

Schubert v. FBI (D.D.C.) -- (1) denying plaintiff’s motion to amend his complaint, because plaintiff impermissibly sought to expand the time scope of his request from nine months to 10 years; (2) FBI properly relied on Exemption 7(C) in refusing to confirm or deny records showing who accessed plaintiff’s criminal history; (3) FBI’s search for first-party records was not required by the request, but nevertheless finding that FBI’s voluntary search was adequate; and (4) Federal Bureau of Prisons performed adequate search despite also finding no records.

N.Y. Times v. FBI (S.D.N.Y.) -- following in camera review of report about “Havana Syndrome,” deciding that: (1) FBI properly redacted information concerning third parties pursuant to Exemption 7(C); and (2) FBI properly relied on Exemption 7(E) to redact certain portions of report, but it could not withhold the report in full using that exemption because one law enforcement technique was known to the public and the report’s introduction and conclusion did not reveal any techniques, procedures, or guidelines at all.

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

FOIA News: FOIA Advisory Committee next meets on March 5, 2024

The next meeting of the federal Freedom of Information Act Advisory Committee will take place virtually on March 5, 2024, one week before the kickoff of Sunshine Week. Additional details are available here. The committee is scheduled to meet in April and May, as well, before concluding its term in June.

Court opinion issued Jan. 25, 2024

Hensley v. DOJ (E.D. Ark.) -- concluding that FBI performed reasonable search for an alleged recording or transcript of agency’s interview of plaintiff prior to his indictment.

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

Court opinion issued Jan. 22, 2024

Phillips v. U.S. Bureau of the Census (S.D.N.Y.) -- denying plaintiff’s request for attorneys’ fees and costs after finding that: (1) plaintiff was eligible for fees and costs because he obtained partial relief from a judicial order, specifically an agency file comparable to the file he requested by a date certain; and (2) plaintiff was not entitled to fees and costs because the agency was preparing to release records well in advance of plaintiff’s request and lawsuit, and because it reasonably denied plaintiff’s request.

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

FOIA News: After years of silence, OGIS publicly torpedoes the term "Glomar"

On January 25, 2024, the Office of Government Information Services launched a stealth attack on the use of the term “Glomar,” posting on its blog, the FOIA Ombudsman, that it hoped agencies would “retire the term” following the federal FOIA Advisory Committee’s recommendation to do so in 2022.

Notably, although OGIS chairs the FOIA Advisory Committee and may comment and vote on proposed recommendations, it said nothing about this issue during the two public committee meetings at which it was discussed: Dec. 9, 2021 (transcript), and Mar. 10, 2022 (transcript with vote). According to the transcript minutes of the former meeting, OGIS reportedly provided input about “Glomar” to the sponsors of the recommendation. The substance of OGIS’s comments has never been officially released, however. By contrast, the Department of Justice was forthright in the meetings about its disagreement with the recommendation, and four committee members—including yours truly—voted against it. DOJ abstained from voting, as is its practice. No vote was recorded for OGIS, whose director missed the March 10, 2022 meeting.

The committee’s non-unanimous recommendation was approved by the Archivist of the United States. It remains pending at the Department of Justice (where it should die).

FOIA News: OIP solicits nominees for Sunshine Week awards

OIP Now Accepting Nominations for the 2024 Sunshine Week FOIA Awards

By DOJ/OIP, FOIA Post, Jan. 23, 2024

The Department of Justice, Office of Information Policy (OIP) is pleased to announce that nominations are open for the 2024 Sunshine Week FOIA Awards, recognizing the contributions of FOIA professionals from around the government.  As the Attorney General recognized in his FOIA Guidelines issued in March 2022, “[t]he federal government could not process the hundreds of thousands of FOIA requests that are received every year without its dedicated FOIA professionals.”  Agency FOIA professionals are at the center of ensuring successful FOIA administration and we look forward to celebrating the work of these individuals from around the government.  For this year’s event, OIP is seeking nominations for five categories of awards:

Read more here.