FOIA News: The worst agency responses of 2023

The Foilies 2024

Muckrock, Mar. 10. 2024

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The Foilies are our attempt to call out . . .violations each year during Sunshine Week, an annual event (March 10-16 this year) when advocacy groups, news organizations and citizen watchdogs combine efforts to highlight the importance of government transparency laws. The Electronic Frontier Foundation and MuckRock, in partnership with the Association of Alternative Newsmedia, compile the year’s worst and most ridiculous responses to public records requests and other attempts to thwart public access to information, including through increasing attempts to gut the laws guaranteeing this access—and we issue these agencies and officials tongue-in-cheek “awards” for their failures.

Read more here.

Jobs, jobs, jobs: Weekly report, 3/11/24

Federal jobs closing in the next ten days:

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

Gov’t Info. Specialist, Dep’t of State, Arlington, VA, GS 13, closes 3/12/24 (non-public).

Records Management Assistant (FOIA/PA), Fort Belvoir, VA, GS 7, closes 3/14/24 (non-public).

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

Gov’t Info. Specialist, EPA, Washington, D.C., GS 13, closes 3/15/24 (non-public).

Sup. Gov’t Info. Specialist, Dep’t of Veterans Affairs/VBA, Washington, D.C., closes 3/15/24 (non-public).

Gov’t Info. Specialist, Dep’t of Justice/ATF, GS 12, Washington, DC, closes 3/15/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 9, Columbia, SC, closes 3/18/24 (non-public).

Sup. Gov’t Info. Specialist, Dep’t of Veterans Affairs, GS 14, Overland, MO, closes 3/19/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs, GS 12, Durham, NC, closes 3/20/24 (non-public).

Sup. General Attorney, Dep’t of Justice/Crim., GS 15, Washington, D.C., closes 3/20/24.

Court opinions issued Mar. 6, 2024

United for FBI Integrity v. DOJ (D.D.C.) -- ruling that: (1) DOJ improperly issued Exemption 6 and 7(C) Glomar responses as to the existence of records that concern former FBI employee’s role in the loss of plaintiff’s security clearance and any records about allegations that the SAC violated plaintiff’s constitutional rights; and (2) DOJ properly issued Exemption 6 and 7(C) Glomar responses as to the existence of various records concerning sexual misconduct allegedly committed by the same former FBI employee.

Scarlett v. OIG (D.D.C.) -- on renewed summary judgment, deciding that National Science Foundation’s Office of Inspector General reasonably described its search for records pertaining to plaintiff or her company.

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

FOIA News: With FOIA backlogs on the rise, do agencies need direct-hire authority?

With FOIA backlogs on the rise, do agencies need direct-hire authority?

By Justin Doubleday, Federal News Network, Mar. 7, 2024

With Freedom of Information Act backlogs continuing to rise, a federal advisory committee is advancing some potential solutions to the FOIA staffing challenges that have plagued many agencies.

The FOIA Advisory Committee, during a March 5 meeting, discussed a draft report on “staffing/personnel” from the resources subcommittee.

Read more here.

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.