Court opinion issued Mar. 31, 2024

Citizens for Responsibility & Ethics in Wash. v. DOJ (D.D.C.) -- on remand from the D.C. Circuit, holding that: (1) the names of federal contractors who supplied the Federal Bureau of Prisons (BOP) with pentobarbital qualified as commercial information under Exemption 4 because disclosure would reveal that “the contractors have sold a product and/or service to the government, thereby ‘actually reveal[ing] basic commercial operations” of the contractors.’”; (2) BOP established that the disputed contract terms were confidential under Exemption 4 by “showing how the contract terms at issue could be cross-referenced with public information to identify the contractors”; (3).BOP established that foreseeable harm would result from disclosure of the contractors’ names and contract terms by explaining that identified companies are “‘commonly subject to harassment, threats, and negative publicity leading to commercial decline’”; and (4) certain records needed to be reviewed in camera review to resolve whether DOJ had publicly shared withheld information.

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

FOIA News: CNN sues DOJ for Biden interview recordings

CNN sues for access to tape of Biden’s interview with investigators in classified docs probe

By Katelyn Polantz & Hannah Rabinowitz, CNN, Apr. 4, 2024

CNN has sued for access to recordings of federal investigators’ interview with President Joe Biden in the now-closed probe over his handling of classified documents.

The interview has become one of the most notable and politically controversial parts of special counsel Robert Hur’s investigation, which concluded there wasn’t enough evidence to charge Biden with criminal mishandling of records after his vice presidency. In a final report, Hur called Biden, 81, “a sympathetic, well-meaning, elderly man with a poor memory.”

The Justice Department released transcripts of Biden’s interview after Hur’s report was made public in February, but the department also has recordings.

Read more here.

Monthly Roundup: March 2024

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

Court decisions:

We posted 27 decisions in March, the most active month of the year thus far. Of note, the D.C. Circuit’s decision in Leopold v. DOJ (Mar. 1, 2024) reminded agencies that they must sequentially analyze exemptions and foreseeable harm, which in this Exemption 8 case the agency failed to do. Although the Circuit stated in passing that the foreseeable harm requirement applied to “all exemptions, except Exemption 3,” a more recent district court opinion correctly pointed out that foreseeable harm would “always” be present when the government properly invokes Exemption 1. James Madison Project v. Office of the Dir. of Nat'l Intelligence (D.D.C. Mar. 26, 2024).

In the interval between the above two cases, the court in Inst. for Energy Research v. FERC (D.D.C. Mar. 13) found that FERC had reasonably defined a “record” as a single text message (as opposed to “threads”) given plaintiff’s request for specific text messages containing certain terms. In reaching its decision, the court relied on DOJ/OIP’s 1995 guidance on determining the scope of a FOIA request.

Top news:

On March 4, 2024, the Department of Justice’s Office of Information Policy (DOJ/OIP) announced that federal agencies received more than 1.1 million FOIA requests in fiscal year 2023, surpassing the government’s previous year’s total by nearly 30 percent. As FOIA Advisor reported the day before, the government’s backlog of requests increased slightly from 206,720 to 208,282.

The government released two major reports during ‘Sunshine Week,” which was observed from March 10, 2024, to March 16, 2024. First, on March 12, 2024, DOJ/OIP issued its annual FOIA Litigation and Compliance Report, which indicated among other things that 834 FOIA lawsuits had been filed in calendar year 2023. On the next day, March 13, 2024, the U.S. Government Accountability Office released an 80-page report entitled Freedom of Information Act: Additional Guidance and Reliable Data Can Help Address Agency Backlogs. In sum, GAO recommended that DOJ/OIP develop new guidance to ensure FOIA backlog reduction plans include clear goals, milestones, and timelines.

April lookahead:

April 3: DOJ training, Introduction to the Freedom of Information Act.

April 4: Meeting of the federal FOIA Advisory Commitee.

April 9: D.C. Circuit oral argument in Connell, III v. CIA, 23-5118. The lower court’s decision is here.

April 10: DOJ training, Processing a Request from Start to Finish.

April 17: Meeting of the Chief FOIA Officers Council.

Jobs, jobs, jobs: Weekly report, 4/1/24

Federal positions closing in the next 10 days

Gov’t Info. Specialist, Dep’t of Justice, OIG, GS 11-12, Washington, D.C., closes 4/2/24 (non-public).

Gov’t Info. Specialist, Dep’t of State, GS 9-11, Washington, D.C., closes 4/2/24.

Gov’t Info Specialist, Dep’t of State, GS 9-11. Washington, D.C., closes 4/2/24 (non-public).

Gov’t Info. Specialist, EPA, GS 13, Lenexa, KS, closes 4/3/24 (non-public).

Paralegal Specialist, Dep’t of Def./USMC, GS 12, Quantico, VA, closes 4/3/24.

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Seattle, WA, closes 4/3/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, South Dakota, closes 4/3/24.

Gov’t Info Specialist, Dep’t of the Interior/BLM, GS 12, Remote, closes 4/5/24 or first 30 applications (non-public).

Gov’t Info Specialist, Dep’t of Labor/MSHA, GS 13, Arlington, VA, closes 4/8/24.

Gov’t Info Specialist, Dep’t of Labor/MSHA, GS 13, Arlington, VA, closes 4/8/24 (non-public).

Sup. Gov’t Info Specialist, Dep’t of Def./DCSA, GS 14, Boyers, PA, closes 4/8/24 (non-public).

Gov’t Info Specialist, Dep’t of Def./Army, GS 12, Fort Liberty, NC, closes 4/10/24 (non-public).

Gov’t Info Specialist, Dep’t of the Treasury/IRS, GS 14, closes 4/10/24 (non-public).

Gov’t Info Specialist, Dep’t of Def./Army, GS 12, Fort Meade, MD, closes 4/11/24.

Gov’t Info Specialist, Dep’t of Veterans Affairs/VBA, GS 13, location negotiable, closes 4/11/24 (non-public).

Federal positions closing on or after 4/12/24

Sup. Atty-Advisor, Dep’t of Justice/NSD, GS 15, Washington, D.C., closes 4/12/24.

Attorney Adviser Int’l, Dep’t of State, GS 12-13, Washington, D.C., closes 4/22/24.

Attorney Advisor Int’l, Dep’t of State, GS 14-15, Washington, D.C., closes 4/22/24.

Court opinions issued Mar. 26-March 29, 2024

Mar. 29, 2024

McKathan v. DHS (D.D.C.) -- deciding that: (1) plaintiff’s request to DHS for all records mentioning his “name, address, phone number, the investigation number listed in a seizure custody receipt, or subscriber or identifying information about U.S.-based users of ‘imgsrc.ru’” was not reasonably described, and plaintiff failed to exhaust his administrative remedies; (2) State Department conducted an adequate search in response to plaintiff’s similarly broad request; and (3) denying plaintiff’s request for discovery from DHS and the State Department; denying his request for Vaughn indices from DOJ and EOSUA, which were still processing plaintiff’s requests; and denying an expedited summary judgment schedule.

Mar. 28, 2024

Clay v. Dep’t of the Navy (M.D. Fla.) -- dismissing case as moot after determining that agency had released all previously withheld records disputed by plaintiff.

Staszak v. DOJ (D.D.C.) -- finding that plaintiff failed to exhaust his administrative remedies with respect to his requests to EOUSA and FBI pertaining to his son’s criminal conviction, noting that plaintiff obtained his son’s express written consent for those agencies to search for and process responsive records only after filing suit.

Mar. 27, 2024

Groenendal v. EOUSA (D.D.C.) -- ruling that (1) EOUSA and ICE performed adequate searches for various records pertaining to plaintiff’s imprisonment on child pornography-related charges; and (2) EOUSA properly withheld certain records pursuant to Exemptions 3, 5, 7(C), and 7(E), and met any applicable foreseeable harm requirement.

Mar. 26, 2024

James Madison Project v. Office of the Dir. of Nat'l Intelligence (D.D.C.) -- on renewed summary judgment, concluding that the government properly redacted a report containing ODNI’s intelligence assessment regarding the source of Havana Syndrome” pursuant to Exemptions 1, 3, and 7(E); stating further that the government “would easily satisfy” the foreseeable harm requirement if plaintiffs had contested it, noting that reasonable foreseeable harm “is always present when the Government properly invokes exemption 1, because significant harm from disclosure is a requirement for classification in the first place.”

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

Court opinion issued Mar. 25, 2024

Zaid v. DOJ (4th Cir. ) -- affirming district court’s decision that FBI properly relied on Exemption 7(A) to withhold records concerning the criminal investigation of plaintiff’s client, who was charged with production and possession of child pornography; remarking that “to hold against the government in this case would set the burden so high as to risk writing the exemption out of the statute.”

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

FOIA News: Radio interview with GAO about FOIA backlogs

What to do about those ever-rising FOIA request backlogs

Freedom of Information Act (FOIA) requests keep rising every year. Some agencies have trouble responding to them on time, leading to growing backlogs.

Tom Temin, Fed. News Network, Mar. 27, 2024

Freedom of Information Act (FOIA) requests keep rising every year. Some agencies have trouble responding to them on time, leading to growing backlogs. The Government Accountability Office (GAO) found that the Justice Department bureau that oversees FOIA activity could improve its guidance on how to get out from under backlogs. For more, the Federal Drive with Tom Temin with GAO’s Director of Strategic Issues, Jay McTigue.

Interview Transcript: 

Tom Temin Give us a sense of FOIA activity. Has it been on the rise? And tell us more about the level of backlogs some agencies, anyhow, are seeing?

Jay McTigue Sure. We looked back over the last decade looking at data from 2013 up through 2022, and we found that backlogs government wide have nearly doubled to a little bit over 200,000 at the end of fiscal year 2022. This reflects a long term trend, a persistent challenge for federal agencies.

Read more here.

Court opinions issued Mar. 22, 2024

Hettena v. CIA (D.D.C.) -- ruling that agency’s Office of Inspector General properly relied on Exemptions 1 and 3 to redact information from its report concerning the death of Manadel al-Jamadian, an Iraqi national who was detained for carrying out an October 27, 2003, terrorist attack on Red Cross offices in Baghdad.

Phillips v. DHS (D.D.C.) -- finding that U.S, Customs and Border Protection properly withheld two videos of detainees pursuant to Exemptions 6 and 7(C) and that it could not reasonably segregate and release non-exempt portions; noting that even if a video “that blurred the individuals’ faces and muted the audio might still convey the detainees’ emotional state, it is unclear that that information would be responsive to the FOIA request—and in any event, that marginal information would be substantially outweighed by the excessive costs of redaction.”

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

FOIA News: FOIA Bootcamp at Yale University

Yale Law School will host a FOIA Bootcamp in person on March 26, 2024, with journalist Nate Jones and criminal defense investigator Nathan Tempey. See more details here.

Jobs, jobs, jobs: Weekly report, 3/25/24

Federal positions closing in the next 10 days

Gov’t Info. Specialist, Dep’t of the Interior/Bureau of Reclamation, GS 11-12, Remote, closes 3/25/24 (non-public).

Law Clerk, EPA, GS 11, Seattle, WA, closes 3/25/24.

Gov’t Info. Specialist, Dep’t of Justice, OIG, GS 11-12, Washington, D.C., closes 4/2/24 (non-public)

Gov’t Info. Specialist, Dep’t of State, GS 9-11, Washington, D.C., closes 4/2/24.

Gov’t Info Specialist, Dep’t of State, GS 9-11. Washington, D.C., closes 4/2/24 (non-public).

Gov’t Info. Specialist, EPA, GS 13, Lenexa, KS, closed 4/3/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Seattle, WA, closes 4/3/24 (non-public).

Federal positions closing on or after April 5, 2024

Attorney Adviser Int’l, Dep’t of State, GS 12-13, Washington, D.C., closes 4/22/24.

Attorney Advisor Int’l, Dep’t of State, GS 14-15, Washington, D.C., closes 4/22/24.