OIP Posts FOIA Best Practices Discussed at Recent Workshop
DOJ/OIP, FOIA Post, Sept. 10, 2024
On July 31, 2024, the Office of Information Policy (OIP) hosted a Freedom of Information Act (FOIA) Best Practices Workshop for agency FOIA professionals on creating and implementing backlog reduction plans. A summary of the best practices discussed is now available on OIP’s Best Practices Workshop Series page.
Read more here.
The Defense Nuclear Facilities Safety Board has finalized amendments to certain fee provisions in its FOIA regulations, as set forth in a final rule published in the Federal Register. Among other things, DNFSB replaced the words “employee” and “employees” with the word “personnel” to ensure that it is able to recover the cost of document search and review time spent by contract workers as well as federal employees. The amendments become effective on October 10, 2024.
Judicial Watch, Inc. v. DOJ (D.D.C.) — in a case concerning the withholding of employee rosters for the office of Special Counsel Jack Smith—and, specifically, the identities of employees at the GS-14 level or higher who had not previously been disclosed to the requester—granting the government’s motion for summary judgment and approving its use of Exemptions 6, 7(A), and 7(C); holding also that the foreseeable-harm standard was satisfied; noting, with respect to Exemption 7(A), that disclosure would expose Special Counsel employees to “threats and harassment,” and otherwise reveal “nonpublic information about the office’s ongoing investigations, including its focus and scope” and “size”; finally, with Exemptions 6 and 7(C), deciding that the public interest in disclose was “weak” given the low-level nature of the unidentified employees.
Walsh v. Dep’t of the Navy (D.S.D.) — holding, in most relevant part, that the Navy’s denial of plaintiff’s duplicative request was improper because the agency failed to cite any applicable exemptions, contrary to Eighth Circuit and U.S. Supreme Court precedent; granting government’s motion to strike portions of complaint that were immaterial to plaintiff’s claim, rejecting plaintiff’s argument that doing so would violate the First and Fourteenth Amendments.
Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.
The meeting materials and livestream link for the Committee’s inaugural meeting of 2024-2026 term are available here. The agenda for the first meeting will follow a standard script: remarks from the Archivist and the director of the Office of Government Information Services; introduction of new appointees; review of Committee rules and procedures; and pointers from several returning members to freshman members.
Federal positions closing in the next ten days
Sup. Gov’t Info. Specialist, Dep’t of the Army, GS 13, Fort Meade, MD, closes 9/9/24.
Gov’t Info. Specialist, Dep’t of the Air Force, GS 11-12, remote job, closes 9/9/24 (non-public).
Gov’t Info. Specialist, Dep’t of Educ., GS 7, Wash., DC, close 9/12/24 (non-public).
Gov’t Info. Specialist, Dep’t of the Army, GS 12, Stuttgart, Germany, closes 9/13/24 (non-public).
Gov’t Info. Specialist, Dep’t of Homeland Sec./OIG, location negotiable, closes 9/19/24 (non-public).
Emuwa v. DHS (D.C. Cir.) — affirming district court decision holding the disclosure of USCIS officers’ written asylum recommendations, which are indisputably protected by the deliberative-process privilege under the Circuit’s decision in Abtew v. DHS, 808 F.3d 895 (D.C. Cir. 2015), would also “foreseeably harm interests” protected by Exemption 5; noting the agency’s declarant demonstrated how disclosure would lead to “reduced candor by line asylum officers,” especially considering other “contextual” factors like the “‘sensitive’ nature of asylum adjudications and the specific concern about facilitating asylum fraud”; of special note, rejecting the requester’s arguments that prior release of asylum recommendations by DHS’s predecessor agency, INS, in past decades foreclosed satisfaction of the foreseeable harm standard in present instances.
Hall & Assocs. v. EPA (D.D.C.) — granting in part and denying in part plaintiff’s fee motion in a case concerning a FOIA request filed in November 2014; awarding $132,531.51 for attorneys’ fees according to the USAO Matrix, and another $18,566.81 for out-of-pocket costs; noting the “fee award represents a significant reduction of the seven-figure award” ($1,514,056.66) sought by the request, but that partial recovery was warranted, notwithstanding insufficient evidence to demonstrate the requester’s proposed market rates or work-hours expended on the lawsuit, because (1) there is no dispute the requester substantially prevailed, (2) the request at issue “had at least some public value in its potential to uncover useful information regarding the management of essential local government services,” and (3) the EPA’s grounds for withholding, which “helped prolong this litigation,” were “not entirely reasonable.”
Ball v. EOUSA (D.D.C.) — ruling that: (1) EOUSA performed adequate search for records concerning plaintiff’s prosecution for child sexual offenses and noting that EOUSA’s consultation with ICE did not obligate ICE to conduct a search of its own records; (2) EOUSA properly withheld records pursuant to Exemption 3 in conjunction with the Child Victims’ and Child Witnesses’ Rights Act, 18 U.S.C. § 3509(d)(1); (3) EOUSA improperly relied on Exemption 5’s attorney work-privilege to withhold “trial preparation material” that consisted entirely of “publicly available documents created by a third party,” which the court could not “fathom” being exempt; (4) EOUSA improperly relied on the deliberative process privilege, as well as Exemptions 6 and 7(C), to withhold a copy of an Eleventh Circuit decision involving a sex offender, remarking that it “beggars belief to assert privacy interests in a published court opinion”; EOUSA was entitled under Exemption 5 to withhold “highlighted annotations” appearing on a few publicly available pages; (5) EOUSA properly invoked the attorney work-product privilege to withhold “internal memoranda and emails” generated in anticipation prosecuting plaintiff, except for one redacted email that was previously released in unredacted form and another that EOUSA failed to defend; (6) EOUSA sufficiently demonstrated foreseeable harm for all the Exemption 5 withholdings on which it prevailed; (7) EOUSA properly withheld certain records pursuant to Exemptions 6 and 7(E).
Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.
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.
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.
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.
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.