Monthly Roundup: Feb. 2024

Below is our roundup of FOIA court decisions and FOIA news from February 2024, as well as a peek ahead to March.

Court decisions:

We posted 16 decisions issued in February. Of note, the U.S. District Court for the District of Columbia held in Protect the Public’s Trust v. IRS that plaintiff was eligible for attorney’s fees even though it never received responsive documents. The court reasoned that the IRS thrice refused to search for requested record and the agency changed its position only after being sued and ordered to file a dispositive motion. In AMA Sys. v. FDA, the U.S. District Court for the District of Maryland ruled that because all information protected under Exemption 4 is barred from disclosure under the Trade Secrets Act, the foreseeable harm test was inapplicable. This appears to be the first court to accept that argument, and it also appears to be inconsistent with DOJ/OIP’s 2023 guidance to agencies.

On February 16, FOIA Advisor published its list of notable court decisions issued in calendar year 2023.

News:

We were saddened to learn of the death of Dan Metcalfe, co-founder of DOJ/OIP.

Dozens of agencies posted their annual FOIA reports ahead of the March 1st posting deadline. Reports posted by DOJ, DOD, NARA, and HHS showed sizable increases in the volume of requests received. FOIA Advisor will post a summary of the overall data as soon as DOJ makes it available via FOIA.gov.

March lookahead:

March 5, 2024: FOIA Advisory Committee meeting.

March 11, 2024: Agencies are required to post their 2024 Chief FOIA Officer Reports online.

Sunshine Week is March 10 to March 16, 2024. Several federal agencies will host special events:

• March 11, 2024: Dep’t of Justice, annual Sunshine Week celebration, 10am-noon.

• March 13, 2024: Dep’t of Commerce, “The Power of Open Government,” 9am-1:30pm.

• March 14, 2024: Nat’l Archives & Records Admin., “Artificial Intelligence: The Intersection of Public Access and Open Government,” 1pm.

Court opinion issued Feb. 29, 2024

US Right to Know v. Nat'l Nuclear Sec. Admin. (D.N.M.) -- determining that agency performed reasonable search for records pertaining to the origin of COVID-19 and/or SARS-CoV-2.

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

FOIA News: NARA posts annual FOIA reports; requests quadruple

The National Archives and Records Administration has released its annual FOIA report for fiscal year 2023. Here is a summary of the key data:

• Requests received: 62,505, an increase of 317 percent from 14,975 in FY 2022.

• Requests processed: 66,064, an increase of 341 percent from 14,977 in FY 2022.

• Backlog of requests: 6,410, a 35.7 percent decline from 9,969 in FY 2022.

• Appeals received: 121, an increase of 49 percent from 81 in FY 2022.

• Appeals processed: 64, an increase of 190 percent from 22 in FY 2022.

• Backlog of appeals: 224, an increase of 44.5 percent from 155 in FY 2022.

• Total costs: $1,688,400, with administrative costs of $1,632,400, and litigation costs of $56k. Total costs in FY 2023 were 9.6 percent higher than in FY 2022 ($1,540,000).

• Processing time: The median processing time for all perfected, “complex” requests was 897 days.

Court opinion issued Feb. 27, 2024

Nat’l Assoc. of Minority Veterans v. Dep’t of Veterans Affairs (D.D.C.) -- following in camera review, ruling that: (1) agency did not forfeit right to invoke exemptions on renewed summary judgment, because the only issue argued on initial briefing was adequacy of the agency’s search (which located no records); (2) “most—but not all—of the information redacted by the VA could create “a reasonably expected risk” of circumvention of the law if released,” thus warranting agency’s Exemption 7(E) claims; (3) agency’s survey questions and responses fell within the deliberative process privilege, but agency’s general contentions that disclosure would ”stifle” communications and cause “public confusion” failed to meet the foreseeable harm test.

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

FOIA News: Pentagon releases annual FOIA report; requests escalate

The Department of Defense has posted its annual FOIA report for fiscal year 2023. Below is a summary of the key data.

• Requests received: 60,109, up 11.3 percent from 54,004 in FY2022.

• Requests processed: 55,731, a 6.7 percent increase from 52,222 in FY 2022.

• Backlog of requests: 19,882, up 7 percent from 18,567 in FY 2022.

• Appeals received: 1,108, a decrease of 11.5 percent from 1,252 in FY 2022.

• Appeals processed: 1,247, a decrease of less than 1 percent from 1,257 in FY 2022.

• Backlog of appeals: 736, a 14.6 percent decline from 862 in FY 2022.

• Total costs: $90,06 million, with $85.61 million in administrative costs and $4.45 million in litigation costs. The total costs in FY 2023 were 8.6 percent lower than in FY 2022 ($98.6 million).

• Processing time: Notable laggards include the National Security Agency and Cyber Command, whose median processing times for “complex” requests were 966 days and 652.5 days, respectively—well above the agency overall time of 48.50 median days.

FOIA News: Daniel Metcalfe, co-founder of DOJ/OIP, dead at 72

FOIA Advisor has learned that Daniel Metcalfe, a Freedom of Information Act luminary for the past five decades, died last month at the age of 72. Dan co-founded the Department of Justice’s Office of Information and Privacy with Richard Huff in November 1981. After Mr. Huff retired in 2005, Dan led OIP as Director until his own retirement in January 2007. He subsequently established and ran the Collaboration on Government Secrecy, an educational project devoted to transparency, at the American University Washington College of Law. In 2023, Dan published a book, Inside Justice: Secrecy at Work, which chronicles his FOIA career and addresses numerous transparency issues.

FOIA News: Judicial Watch Settles State Department Lawsuit that Uncovered Hillary Clinton’s Unsecure, Nongovernment Emails

Judicial Watch Settles State Department Lawsuit that Uncovered Hillary Clinton’s Unsecure, Nongovernment Emails

Judicial Watch, Feb. 27, 2024

Judicial Watch announced today it settled its 2014 Freedom of Information Act (FOIA) lawsuit, which sought the emails of then-Secretary of State Hillary Clinton regarding the Benghazi attack. This suit led directly to the disclosure of Clinton’s use of a nongovernment email server to conduct government business (Judicial Watch v. U.S. Department of State (No. 1:14-cv-01242). The settlement commits the State Department to a payment to Judicial Watch of $97,000.

Read more here.

FOIA News: Dep't of Labor appeals order to release EEO-1 reports

DOL Appeals EEO-1 FOIA Ruling to Ninth Circuit Court of Appeals

By Lauren B. Hicks and Emily M. Halliday, Ogletree Deakins, Feb. 27, 202

On February 15, 2024, the U.S. Department of Labor (DOL) filed a notice of appeal to the Ninth Circuit Court of Appeals, seeking review of a district court ruling that ordered the DOL to release federal contractors’ 2016–2020 Type 2 Consolidated EEO-1 Reports to the Center for Investigative Reporting and one of its reporters.

Read more here.

FOIA News: DOJ releases annual FOIA report; EOIR makes major progress

The Department of Justice has released its FOIA annual report for fiscal year 2023, and the numbers are impressive. Below is a summary of the key data.

• Requests received: 110,934, an 18.8 percent increase from 93,370 requests received in FY2022.

• Requests processed: 144.065, a 73.8 percent increase from 82,868 requests processed in FY2022. The Executive Office for Immigration Review alone processed over 104k requests and nearly 34k more than it received (70,475).

• Backlogged requests: 43,927, down 32.4 percent from 64,982 at the end of FY2022.

• Appeals received: 2044, nearly the same as in FY2022 (2048)

• Appeals processed: 2126, the same number as FY2022 (2126)

• Backlogged appeals: 240, a 25 percent decrease from FY2022 (321).

• Total costs: $111,990,580, with $93.32 million in administrative costs and $18.66 million in litigation costs. Total costs in FY2023 were 12.3 percent higher than in FY2022 ($99.72 million).

Jobs, jobs, jobs: Weekly report, 2/26/2024

Federal positions closing in the next 10 days:

Gov’t Info. Specialist, Dep’t of Ed./Sec’y, Washington, D.C., GS-13, closes 2/27/24 (non-public).

Gov’t Info. Specialist, EPA, Reg. 6, Dallas, TX, GS 11-12, closes 2/27/24 (non-public).

Gov’t Info Specialist, Dep’t of the Army, Fort Belvoir, VA, GS 13, closes 2/28/24 (non-public).

Att’y-Advisor, Dep’t of Justice, OIP, Washington, D.C., GS 12-14, closes 2/29/24.

Gov’t Info. Specialist, Dev. Finance Corp., location negotiable, GS 13, closes 2/29/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, Salt Lake City, UT, GS 12, closes 2/29/24.

Trial Attorney, Dep’t of Justice, Crim. Div., Washington, D.C., GS 14-15, closes 3/1/24.

Supervisory Gov’t Info. Specialist, Dep’t of Agric., OCIO, remote, GS 14, closes 3/4/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Air Force, Arlington, VA, GS 12, closes 3/4/24 (non-public).

Gov’t Info. Specialist, Fed. Deposit Ins. Corp., multiple locations, CG 12, closes 3/4/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Army, Fort Belvoir, VA, GS 11, closes 3/6/24 (non-public).