FOIA News: Recap of D.C. Cir. argument on voter access plans

Judges grill Trump allies on bid for voting plans from EPA, other agencies

The Biden administration and a lower court have said the deliberative plans are exempt from disclosure under the Freedom of Information Act.

By Pamela King, E&E News, Sept. 5, 2024

A conservative legal group wants to know what agencies like EPA and the Interior Department said to President Joe Biden after he asked for help in identifying ways the government can promote voting access.

A panel of federal judges appeared skeptical of an attempt by a conservative legal group to get access to strategic plans developed by EPA, the Interior Department and a swath of other agencies to help the Biden administration promote voting access.

During oral arguments Thursday, judges of the U.S. Court of Appeals for the District of Columbia Circuit questioned the challengers on why they are entitled to see the plans, which the government says constitute deliberations within or between agencies subject to exemption under the Freedom of Information Act.

The America First Legal Foundation argued that if President Joe Biden had wanted to keep the plans under lock and key, he should not have solicited them through a publicized executive order. But the judges pressed the group on why it could not instead ask the agencies through FOIA about any actions that resulted from their conversations with the White House.

Read more here.

Court opinion issued Sept. 1, 2024

Stevens v. HHS (N.D. Ill.) -- on renewed summary judgment, holding that: (1) government was not required to file a motion under Rule 60(b) seeking relief from court’s prior summary judgment ruling because the court had not entered final judgment; (2)(a) the Executive Office for Immigration Review’s supplemental search for emails about third parties was inadequate because the agency failed to explain why it did not use the subjects’ A-numbers as search terms; and (b) EOIR unreasonably limited its search to a five-year period where plaintiff asked for decade’s worth of records and the agency’s record retention period is seven years; (3) EOIR was not required to release deduplicated records, rejecting plaintiff’s argument that deduplication is a per se FOIA violation; (4) EOIR was not required to produce an “irreparably damaged” audio recording that could not be copied; (5) EOIR’s referral of emails to DHS was not improper; and (6) EOIR’s “short description” of its withholdings under Exemption 5’s deliberative process privilege were insufficient to carry agency’s burden.

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

FOIA News: DC Circuit to hear FOIA case

The U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument in America First Legal Foundation v. USDA, No. 23-5173 on Thursday, September 5, 2024, at 9:30am. The issue on appeal is whether multiple agencies properly relied on Exemption 5, including the presidential communications privilege, to withhold strategic plans prepared in response to an Executive Order regarding promoting access to voting. The district court ruled in the government’s favor.

Livestream audio is available here.

Monthly roundup: August 2024

Below is a summary of the notable FOIA court decisions and news from last month, as well as a peek ahead to events in September.

Court decisions:

We identified and posted 29 decisions issued in August, nearly twice as many as last month (15) and the highest monthly total of the year to date. Of note, in Shapiro v. Dep’t of Justice (D.D.C. Aug. 1, 2024), the FBI failed to persuade the court that 14 unprocessed tabs in its “Freedom of Information and Privacy Act Document Processing System” were either not agency records, required the agency to create new records, or were too burdensome to produce. The government fared better in a pair of decisions issued by the Southern District of New York involving the same parties. In Reclaim the Records v. U.S. Dep't of State (S.D.N.Y. Aug. 7, 2024), the court held that the State Department performed an adequate search for an index or list of vital records of residents of the Panama Canal Zone, and that because of the limited capabilities of the agency’s computer system, fulfilling plaintiff’s request would entail extraordinary effort and creating new records. Less than three weeks later, a different judge reached a similar conclusion regarding plaintiff’s request for an index of reports concerning death of U.S. citizens abroad. See Reclaim the Records v. U.S. Dep't of State (S.D.N.Y. Aug. 26, 2024).

Top News:

On August 15, 2024, the National Archives and Records Administration announced the newest members of the federal FOIA Advisory Committee for the 2024-2026 term, which kicks off next week (see calendar below).

On August 21, 2024, DOJ’s Office of Information Policy announced the dates of its virtual training for government employees and contractors for fiscal year 2025.

September calendar:

Sept. 5, 2024: D.C. Circuit oral argument in America First Legal Foundation v. USDA, No. 23-5173.

Sept. 9, 2024 (10am-1pm): The first meeting of the federal FOIA Advisory Committee for the 2024-2026 term.

Sept. 9, 2024 (1pm-2:15pm): The law firm Covington will discuss how various aspects of FOIA interact with government contracting. The course will primarily focus on federal FOIA law, but there will also be discussion of state FOIA laws.

Sept. 13, 2024: The second meeting of the federal FOIA Advisory Committee for the 2024-2026 term.

Sept. 30, 2024: Last day of fiscal year 2024. FOIA employees rejoice at close of business.

Court opinion issued Aug. 30, 2024

Stevens v. HHS (N.D. Ill.) -- finding that: (1) U.S. Customs and Border Protection performed adequate search for records concerning Congresswoman’s communications with CBP about electronic health records, and that the agency properly withheld certain records pursuant to Exemption 5 (DPP), 6, and 7(C); (2) CBP unreasonably declined to search for certain “DHS communications and related materials created by or received from other components of DHS”; and (3) CBP failed to sufficiently explain why it limited its search for certain communications with lobbyists and private companies to the recollection of a single employee within the procurement office; and (4) CBP conducted reasonable search for certain records concerning a third party and that CBP properly closed another request in the absence of a signed third party authorization form, which plaintiff failed to prove she submitted.

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

Court opinions issued Aug. 28, 2024

Louise Trauma Ctr. v. USCIS (D. Md.) -- ruling that plaintiff was eligible for attorney’s fees and costs, which the government did not dispute, and that plaintiff also was entitled to an award even though the relevant factors were equally balanced for and against plaintiff; reducing amount of plaintiff’s requested fees by 61 percent because plaintiff’s hourly rate ($620/hr.) and the number of hours billed (88) were “unreasonable.”

Kennedy Human Rights v. ICE (W.D.N.Y.) -- revisiting its order requiring ICE to produce responsive records and a Vaughn Index to plaintiff on a monthly basis and granting government’s motion to use a sample Vaughn Index representing four percent of withheld records due to the “voluminous production” (approximately 17-21k pages).

Tower v. U.S. Customs & Border Prot. (D.D.C.) -- concluding that CPB improperly relied on Exemption 6 in refusing to confirm or deny the existence of communications sent or received by a named employee (who also was an employees’ union president) that mentioned plaintiff, an agency employee and former union member; reasoning that subject’s employment status and “vocal” union activities were already publicly disclosed, and that his “quite weak” private interests were outweighed by public interest in understanding how CBP interacts with its employees’ union.

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

Jobs, jobs, jobs: Weekly report for Sept. 2, 2024

Federal positions closing on or before Sept. 11, 2024.

Gov’t Info. Specialist, Dep’t of the Navy, GS 11, Wash., DC, closes 9/3/24 (non-public).

Director, Dep’t of Agric./FSIS, GS 15, Wash., D.C., closes 9/4/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Salt Lake City, UT, closes 9/4/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Salt Lake City, closes 9/4/24.

Gov’t Info. Specialist, Dep’t of the Treasury/IRS, GS 13, nationwide, closes 9/5/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 11-12, Asheville, NC, closes 9/5/24 (non-public).

Sup. Gov’t Info. Specialist, Dep’t of Homeland Sec./USCIS, GS 14, remote, closes 9/6/24 (non-public).

Sup. Gov’t Info. Specialist, Dep’t of the Army, GS 13, Fort Meade, MD, closes 9/9/24.

Federal positions closing after Sept. 11, 2024.

Gov’t Info. Specialist, Dep’t of the Army, GS 12, Stuttgart, Germany, closes 9/13/24 (non-public).

Court opinions issued Aug. 26, 2024

Am. Wild Horse Campaign v. BLM (D.D.C.) — in a case concerning a report on the inhuman treatment of animals under BLM care, denying the requester’s motion for fees and holding that it was neither “eligible” nor “entitled” to such fees and costs; explaining that the requester never “substantially prevailed” because the court never ordered any relief, and the requester failed to meet its burden to demonstrate eligibility under the “catalyst theory”; further explaining that the records received by the requester, which were largely “administrative” and already in the requester’s possession, would not benefit the public by increasing its awareness of government activities, and the agency had not be unreasonable in delaying production.

Reclaim the Records v. U.S. Dep't of State (S.D.N.Y.) — in a case concerning a request for the State Department’s “index” of reports concerning deaths of U.S. citizens abroad, granting the government’s motion for summary judgment and upholding its “no responsive records” response; accepting the agency’s representations that it no longer maintained a searchable index of death reports, but stored them in a system that could only retrieve discrete records “manually and one-at-a-time”; explaining that if the agency were to conduct individual search queries to provide the requester with a list of all death reports, that would entail the creation of records, and other “backend” search efforts would implicate non-responsive materials.

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

FOIA News: Software firm releases results of FOIA survey

AI can help FOIA offices combat onslaught of bot-powered requests, report says

According to a report from software firm OPEXUS, 93% of FOIA officers believe “AI has a key role to play in helping to review, sort and deduplicate requests.”

Edward Graham, NextGov/FCW, Aug. 27, 2024

Bots powered by artificial intelligence are inundating open records offices with often frivolous petitions, but the same tools underpinning these software applications can also help professionals improve the document disclosure process, according to a survey of federal personnel who process Freedom of Information Act — or FOIA — requests.

The report, released on Tuesday by software firm OPEXUS, found that FOIA officers were concerned about declining numbers of personnel, particularly as open records requests have grown in recent years. 

Read more here.

Court opinion issued Aug. 25, 2024

Am. First Legal Found. v. FTC (D.D.C.) — in a case involving a request for records about the FTC’s regulation of Twitter, granting the government’s partial motion to dismiss; rejecting the requester’s first alternative disclosure claim under the APA for failure to state a claim because the FOIA provides an adequate remedy; also rejecting a second alternative claim under the Mandamus Act for lack of subject-matter jurisdiction; allowing the requester’s challenge under FOIA to the FTC’s use of Exemption 7(A) to proceed.

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