Court opinions issued Mar. 14, 2024

NY Times v. DOJ (2nd Cir.) (unpublished) -- affirming district court’s decision that: (1) DOJ properly relied on Exemption 5’s deliberative process privilege to withhold factual material that was "inextricably intertwined" with independent monitor’s subjective analysis; and (2) agency’s declarations described with "reasonably specific detail" how disclosure would result in harm to its deliberative processes, namely, “its ability to ensure candor between the agency and an independent monitor, so that DOJ can enter and effectively enforce plea agreements with companies like VW.”

Ctr. for Inquiry v. HHS (D.D.C.) -- deciding that: (1) FDA did not perform adequate search for communications between certain employees and the Homeopathic Convention of the United States (HPCU); and (2) FDA properly found that entire copies of draft HPUS monographs were “commercial” under Exemption 4 because they are “the very product from which HPCU derives most of its income,” but the agency failed to sufficiently describe remaining withheld material to permit evaluation of its “commercial” nature and it failed to establish that any records were confidential.

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

FOIA News: DOJ seeks comments on FOIA business standard

On March 18, 2024, the Department of Justice published a request in the Federal Register seeking comments on the proposed Freedom of Information Act business standards that have been created in support of Federal shared services. This is the first set of FOIA standards being developed and input will be used in formulation of business standards for federal agency FOIA case management systems.

Electronic comments must be submitted via the Federal eRulemaking Portal, www.regulations.gov, and written comments must be postmarked, on or before May 17, 2024.

Court opinion issued Mar. 13, 2024

Inst. for Energy Research v. FERC (D.D.C.) -- concluding that: (1) agency conducted adequate search for records, noting that agency reasonably defined a “record” as a single text message (as opposed to “threads”) given plaintiff’s request for specific text messages containing certain terms; (2) FERC properly withheld records pursuant to Exemption 5’s deliberative process privilege, but failed to show foreseeable harm for all but one withholding; and (3) FERC properly relied on Exemption 6 to withhold name of a prospective agency employee and all cellphone numbers (and that the foreseeable harm test was met), but it improperly withheld the names of two employees.

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

FOIA: Reporters Committee Releases Analysis on Use of "Glomar"

We FOIA’d every federal agency for their ‘Glomar’ responses. Here’s what we learned.

By Shawn Musgrave and Adam A. Marshall, Reporters Committee for Freedom of the Press, Mar. 15, 2024

In the summer of 2022, the Reporters Committee for Freedom of the Press started an ambitious project to remedy the informational deficit surrounding Glomar, using (of course) FOIA requests. Specifically, the Reporters Committee wrote FOIA requests asking for response letters from agencies to requesters that included a number of phrases associated with the Glomar response and sent between fiscal years 2017 and 2021. The requests also gave agencies the option to simply report the number of Glomar responses issued each fiscal year, along with the exemption they were tied to. The Reporters Committee submitted the request to every federal department, agency, and subcomponent thereof across the government, totalling hundreds of submissions.

…

As of Jan. 12, nearly 300 federal agencies or components thereof responded to the Reporters Committee’s FOIA requests by providing data about their use of Glomar denials over the five fiscal years from 2017 through 2021. Combined, these agencies issued a total of more than 5,000 Glomar responses during this period.

Just over a third of agencies that responded identified at least one Glomar denial during this period. The remaining agencies replied they had no responsive documents and/or had not issued a Glomar denial during this period.

Read more here.

Jobs, jobs, jobs: Weekly report, 3/18/24

Federal positions closing in the next 10 days

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

Gov’t Info. Specialist, Dep’t of the Air Force, Peterson AFB, CO, GS 12, 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.

Sup. Program Manager (FOIA), Dep’t of Transportation/FMCSA, GS 14, Washington, D.C., closes 3/20/24.

Gov’t Info. Specialist, Dep’t of the Army, GS 11, Fort Novosel, AL, closes 3/21/24 (non-public).

Gov’t Info. Specialist, Nat’l Sci. Found., GS 9-12, Alexandria, VA, closes 3/22/24 (non-public).

FOIA News: Chief FOIA Officers Council meeting

The Chief Freedom Officers Council will meet for this first time in 2024 on April 17th, according to a notice published in the Federal Register. The virtual meeting is open to the public. Additional details about the meeting, including the agenda, will be available on the Chief FOIA Officers Council website.

Court opinion issued Mar. 12, 2024

Project South v. USCIS (S.D.N.Y.) -- regarding disputed responses from ICE, DHS, and State Department to requests about the removals of Cameroonian and other African migrants in 2020 and early 2021, finding that: (1) State established that it conducted an adequate search, but not that it properly withheld draft talking points pursuant to Exemption 5’s deliberative process privilege; (2)(a) ICE did not perform an adequate search for records; (b) ICE did not show that Exemption 3, in conjunction with 8 U.S.C. § 1367(a)(2), applied to detainees' travel documents and immigration proceedings, but such information was properly withheld pursuant to Exemptions 6 and 7(C); and (c) ICE properly relied on the deliberative process privilege to withhold internal discussions about logistics for removal flights; (d) ICE properly withheld an intelligence report, information on removal operations, and negotiations with a foreign government under Exemption 7(E); and (3) DHS failed to prove as a matter of law that they conducted an adequate search.

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

Q&A: Unappealing options

Q. Federal agencies often take many years to issue a determination letter in response to FOIA requests. Is protracted delay a viable basis for appeal, and are such appeals ever advisable?

A. When an agency fails to respond to a FOIA request within the statutory deadline (whether the delay is one day or several years), the requester is entitled to file a lawsuit in federal court. No administrative appeal is necessary. In response to an appeal disputing a delay, agencies typically close the appeal without issuing a decision—at most, notifying agency officials handling the request that an appeal was received. This is because the statute authorizes administrative appeals only in response to an “adverse determination,” and most agencies do not consider delay to be a “determination.” In sum, appealing an agency’s delay might spur the agency’s processing staff to respond, but it has no legal effect.

Court opinion issued Mar. 11, 2024

Delgado v. DOJ (D.D.C.) -- dismissing plaintiff’s claim against DOJ and ATF because he never submitted a request to either of them, and determining that USDA performed an adequate search for records concerning ATF’s contributions to plaintiff’s pension (and finding no records).

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

Court opinion issued Mar. 10, 2024

Wash. Lawyers' Comm. For civil Rights & Urban Affairs v. DOJ (D.D.C.) -- ruling that: (1) plaintiff was not required to exhaust administrative remedies to maintain a pattern-or-practice claim alleging delays in responses by the Federal Bureau of Prisons to counsel requests for client records; (2) government was entitled to summary judgment on plaintiff’s pattern-or-practice claim because plaintiff failed to rebut defendant’s evidence that it did not have a policy or practice of violating FOIA; and (3) in the interest f judicial economy, plaintiff’s 39 individual FOIA requests would severed (with one exception), requiring plaintiff to refile them as separate actions.

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