Court opinion issued Feb. 21, 2024

AMA Sys. v. FDA (D. Md.) -- concluding that: (1) with exception of one email authored by FDA, agency properly invoked Exemption 4 to withhold its file concerning company’s unsuccessful application to produce single-use surgical masks as personal protective equipment during COVID pandemic; (2) agency was not required to meet the foreseeable harm test because all information protected under Exemption 4 was barred from disclosure under the Trade Secrets Act.

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

FOIA News: Transportation releases annual FOIA report; data suggests loss of traction

The Department of Transportation posted its FOIA FY 2023 annual report on Friday, which may or may not have been an intentional news dump. As you’ll see below, the key data is pretty mediocre.

• Requests received: 17,136 a 10 percent decrease from FY 2022, when it received 19,090 requests.

• Requests processed: 16,458, a 13 percent decrease from FY 2022, when it processed 18,958 requests.

• Backlog of requests: 5,913, up 10 percent from 5,362 at end of FY 2022.

• Appeals received: 78, which is 22 percent lower than in FY 2022 (100).

• Appeals processed: 78, which is 90 percent higher than in FY 2022 (41)

• Backlog of appeals: 229, up 3 percent from 222 at the end of FY 2022.

• Costs: A total of S18.67 million, with $17.95 million in administrative costs and nearly $719k in litigation costs. The department’s total costs in FY 2023 were 23 percent higher than its total costs in FY 2022 ($15.15 million).

• Processing time: The FAA took about one year to process its administrative appeals. Half of all perfected and “complex” requests to OIG took about 500 days or more to complete.

FOIA News: Dep't of Labor releases FY2023 annual report; little to cheer about

The Department of Labor has released its annual FOIA report for FY 2023. Here is a summary of the key data:

• Requests received: 14,282 a 1.4 percent decrease from FY 2022, when it received 14.495 requests.

• Requests processed: 14,219, a less than 1 percent decrease from FY 2022, when it processed 14,332 requests.

• Backlog of requests: 1,468, up 12.4 percent from 1,306 at end of FY 2022.

• Appeals received: 199, which is 7,5 percent higher than in FY 2022 (185).

• Appeals processed: 192, which is 4.4 percent lower than in FY 2022 (201)

• Backlog of appeals: 286, the same number at the end of FY 2022.

• Costs: A total of S21.05 million, with $20.25 million in administrative costs and nearly $803k in litigation costs. The department’s total costs in FY 2023 were 14.9 percent higher than its total costs in FY 2022 ($18.32 million).

Court opinions issued Feb. 20, 2024

Louise Trauma Ctr. v. DHS (D.D.C.) -- dismissing remaining portion of plaintiff’s case after holding that plaintiff’s request for “all records concerning” a DHS research unit was “too amorphous to constitute a valid FOIA request.”

McWatters v. ATF (D.D.C.) -- on renewed summary judgment, finding that ATF properly relied on Exemption 7(C) to withhold portion of a tape recording made by one of the 100 victims of a Rhode Island nightclub fire in 2003; crediting ATF declaration that faint human voices could be heard on the recording and that surviving family of the deceased had privacy interests even if voices could not be attributed to specific victims; further, rejecting plaintiff’s asserted public interest as nothing more “than having the information for its own sake,” similar to case involving the recording of the last minutes of NASA’s Challenger shuttle.

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

FOIA News: NARA announces Sunshine Week event

National Archives to Host Sunshine Week Panel on Artificial Intelligence and Government Access
Press Release, Nat’l Archives & Records Admin., Feb. 22, 2024

The National Archives and Records Administration (NARA) will host a panel discussion on “Artificial Intelligence: The Intersection of Public Access and Open Government'' Thursday, March 14, at 1 p.m. ET. This program is being offered during Sunshine Week, an annual nationwide celebration of access to public information.  The event will be in person at the William G. McGowan Theater at the National Archives in Washington, DC, and livestreamed on the National Archives YouTube Channel.

Read more here.

FOIA News: OCC to update FOIA regulations

The Office of the Comptroller of the Currency will amend its FOIA regulations in accordance with a notice of proposed rulemaking published in the Federal Register on February 22, 2024. The updated regulations will add provisions concerning expediting requests and appeals and remove language regarding substantial competitive harm from its submitter notice provisions. Public comments may be submitted through April 22, 2024.

FOIA News: DOJ announces Sunshine Week event

Department of Justice Sunshine Week 2024 Celebration

DOJ/OIP, FOIA Post, Feb. 21, 2024

We invite you to join the Department of Justice for this year’s kick-off to Sunshine Week in person and online.  On Monday, March 11, 2024 from 10:00 am – 12:00 pm, the Department will hold its annual Sunshine Week celebration event in the Great Hall.  Established in 2010, this will mark the fourteenth year of the Department’s event recognizing the importance of FOIA for government transparency and celebrating the efforts of those professionals dedicated to the success of their agencies’ FOIA administration.  We invite all agency personnel and members of the public to join us for this year’s event.

The event will include the Department’s annual Sunshine Week FOIA Awards Ceremony to honor and celebrate the work of dedicated FOIA professionals across the government.

The event will also be broadcast via livestream at www.justice.gov/live.   

See more here.

FOIA News: Interior Department releases FY23 report; backlogs reduced

The Department of the Interior, whose request backlog increased nearly 200 percent between FY 2017 and FY 2022, has released its annual FOIA report for FY 2023. Here is a summary of the notable data:

• Requests received: 7,085 a 10 percent increase from FY 2022, when it received 6.405 requests.

• Requests processed: 7,388, a nearly 20 percent increase from FY 2022, when it processed 6,167 requests.

• Backlog of requests: 4,320, down 10 percent from 4,808 at end of FY 2022.

• Appeals received: 205, which is just over 10 percent higher than in FY 2022 (229).

• Appeals processed: 299, which is just under 10 percent higher than in FY 2022 (273)

• Backlog of appeals: 217, down nearly 31 percent from 314 in FY 2022.

• Costs: A total of S18.14 million, with $17.35 million in administrative costs and $794k in litigation costs. The department’s total costs in FY 2023 were 2.3 percent lower than its total costs in FY 2022 ($18.57 million).

FOIA News: HHS releases annual report; requests climb nearly 21 percent

The Department of Health and Human Services, whose FOIA request load often places it in the top five government-wide, has released its annual FOIA report for fiscal year 2023. Here is a summary of the notable data:

• Requests received: 46,530, an increase of nearly 21 percent from FY 2022, when it received 38,462 requests.

• Requests processed: 47,038, an increase of 26 percent from FY 2022, when it processed 37,241 requests.

• Backlog of requests: 11,256, down one-half percent from 11,320 at end of FY 2022.

• Appeals received: 466, which is just shy of 6 percent higher than in FY 2022 (440).

• Appeals processed: 411, which is 14 percent lower than in FY 2022 (478)

• Backlog of appeals: 640, up 10 percent from 581 in FY 2022.

• Costs: A total of S39.7 million, with $32.23 million in administrative costs and $7.46 million in litigation costs. This is approximately 18 percent higher than total costs in FY 2022 ($33.5 million).

Court opinions issued Feb. 16, 2024

Feb. 16, 2024

Insider, Inc. v.. GSA (D.C. Cir.) -- affirming district court’s decision that GSA properly invoked Exemption 6 to withhold the names of several low-level members of President Trump’s and Vice President Pence’s outgoing transition teams; reasoning that such individuals were not government employees, disclosure would not shed light on GSA activities, and the mere possibility that such individuals might be aware of government conduct was too speculative to qualify as a public interest.

US Inventor, Inc. v. USPTO (D.D.C.) -- ruling that Patent & Trade office performed reasonable searches for various records concerning a vacant Director’s position.

Geddis v. DHS (D.D.C.) -- determining that plaintiff failed to rebut evidence that agency never received his request, which was indisputably sent but misaddressed.

Protect the Public’s Trust v. IRS (D.D.C.) -- holding that: (1) plaintiff was eligible for attorney’s fees because IRS thrice refused to search for requested records and it changed its position only after plaintiff filed suit and the court ordered the filing of a dispositive motion; rejecting agency’s argument that a plaintiff cannot substantially prevail without obtaining responsive records, and (2) plaintiff was entitled to fees and its requested fee amount was reasonable, especially given the “interesting legal questions” raised by the request for fees.

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