Court opinions Mar. 1, 2024

Leopold v. DOJ (D.C. Cir.) -- reversing and remanding district court’s decision because neither the agency nor the lower court fully addressed whether the disclosure of information withheld from an independent monitor’s report under Exemption 8 met the statute’s foreseeable harm test.

Tobias v. U.S. Dep't of the Interior (D.D.C.) -- ruling that agency properly relied on Exemption 5’s deliberative process privilege to withhold internal agency communications concerning how to respond to arguments in a permit applicant’s white paper, and that the agency adequately demonstrated foreseeable harm.

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

FOIA News: FOIA Advisory Committee meeting

In case you missed it, the federal FOIA Advisory Committee met on Tuesday, March 5, 2024. Here is a replay of the action, as well as the meeting materials. The Committee will meet next on April 4, 2024.

FOIA News: OIP releases 2023 Litigation and Compliance Report

On March 4, 2024, the Department of Justice’s Office of Information Policy released its 2023 Litigation and Compliance Report. Among other things, DOJ reported that requesters filed 834 FOIA lawsuits in 2023. a four percent increase from 797 claims in 2022 .

FOIA News: Agencies received nearly 1.2 million requests in FY 2023

According to updated data posted on Foia.gov, agencies received 1,199,644 requests in fiscal year 2023, a whopping 29 percent increase from 928,353 in FY 2022. The Department of Homeland Security alone received 674,856 of those requests, or 56 percent, which is on par with recent years.

Further, agencies collectively processed 1,122,166 requests, a 27 percent increase from 878,420 requests processed in FY 2022.

The government’s request backlog increased slightly from 206,720 in FY 2022 to 208,282 in FY 2023. The appeals backlog decreased slightly from 4,709 to 4,646.

Total FOIA costs were $659,719,904, with $610,629,248 in administrative costs and $49,090,656 in litigation costs, all of which were higher than in FY 2022 ($585 million total). Only $2,333,293 in fees were collected from requesters, but this was higher than in FY 2022 ($2,192,645).

Jobs, jobs, jobs: Weekly report, 3/4/24

Federal jobs closing in the next ten days

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).

Gov’t Info. Specialist, Dep’t of the Navy, Washington, D.C., GS 13, closes 3/6/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, Salt Lake City, UT, GS 12, closes 3/7/24.

Gov’t Info, Specialist, Dep’t of Veterans Affairs/VHA, Northern California, GS 12, closes 3/8/24 (non-public).

FOIA and Privacy Technician, Dep’t of Def./DCSA, Boyers, PA, GS 7, closes 3/11/24.

Federal positions closing after 3/14/2024

Attorney-Adviser, EPA, Washington, D.C., GS 11-12, closes 3/15/24.

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.