FOIA News: OGIS revisits "still interested" letters

OGIS Remains Interested in “Still Interested” Letters

By Kimberlee Ried, The FOIA Ombudsman, Sept. 19, 2024

As the federal government approaches the end of fiscal year 2024 in September, we recognize that many federal agencies are aiming to close old FOIA requests and reduce their FOIA backlogs. Some are sending requesters “still interested” letters to ensure that the requester still seeks the requested records. The Office of Information Policy (OIP) guidance on the issue advises agencies about “being mindful” in regard to the timelines for requesters to respond to agencies and indicate their level of interest. OIP updated this guidance in 2021 and included a series of procedures that agencies should use when sending “still interested” letters.

Read more here.

Court opinion issued Sept. 13, 2024

Biddle v. DOD (D.D.C.) -- finding that “the overly brief, generalized, and technical (in part) affidavit supplied by the Department” did not enable the Court to rule on the applicability of the Department’s invocation of Exemption 3 in conjunction with 10 U.S.C. § 130e, which protects “critical infrastructure security information”; cautioning the government that it must include all exemptions it seeks to invoke in its renewed summary judgment motion and not “reserve” any of them, as it did here.

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

Court opinion issued Sept. 11, 2024

Wonder v. Dep’t of the Army Office of Gen. Counsel (D.D.C.) -- concluding that: (1) plaintiff’s failure to exhaust his 2012 and 2014 requests for a legal memo concerning his security clearance did not bar plaintiff’s duplicate 2022 request (which was fully exhausted), rejecting government’s exhaustion position as “a harsh sanction unsupported by statute, precedent, or logic”; and (2) Army properly withheld the disputed memo pursuant to Exemption 5’s attorney-client privilege and it satisfied statute’s foreseeable harm requirement.

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

Court opinions issued Sept. 10, 2024

Corbett v. Transp. Sec. Admin. (9th Cir.) -- vacating district court’s decision and holding that a requester is not required to file an administrative appeal when an agency issues a response after requester has properly filed a lawsuit, following the reasoning of the Fourth Circuit’s 1995 decision in Pollack v. DOJ.

McCarthy v. DOJ (S.D.N.Y.) -- transferring case to the Eastern District of New York because pro se plaintiff’s residence and the requested records are both in that district, thus making the Southern District of New York an improper venue for her FOIA claim under 5 U.S.C. § 552(a)(4)(B).

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

FOIA News: This and that

• On September 13, 2023, the federal FOIA Advisory Commitee for the 2024-2026 term held its second meeting of the week. See meeting materials here.

• On September 23, 2024, “Management Concepts” will begin a three-day FOIA and Privacy Act course.

• Have complaints about television’s football coverage? Join the club. The Government Attic has posted complaints filed with the FCC here.

• The FBI has recently posted records concerning Larry Flynt, George (Gordon) Liddy, and the Knight of Malta in The Vault.

Jobs, jobs, jobs: Weekly report Sept. 16, 2024

Federal vacancies closing in the next 10 days

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, remote, closes 9/16/24 (internal to agency).

Gov’t Info. Specialist, Dep’t of Commerce/USPTO, GS 13, Alexandria, VA, closes 9/16/24 (internal to agency).

Sup. Gov’t Info. Specialist, Dep’t of Veterans Affairs, GS 14, Wash., DC, closes 9/17/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Air Force, GS 11-12, Quantico, VA, closes 9/18/24 (non-public).

Gov’t Info. Specialist, Dep’t of Homeland Sec./OIG, location negotiable, closes 9/19/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Treasury/IRS, GS 13, nationwide IRS locations, closes 9/19/24 (non-public).

Gov’t Info. Specialist, Dep’t of Justice/OIG, GS 14, Wash., DC, closes 9/23/24, closes 9/23/24 (non-public).

Paralegal Specialist, Dep’t of Homeland Sec./ICE, GS 13, remote, closes 9/23/24 (non-public).

FOIA News: OIP updates list of Exemption 3 statutes

Key FOIA Resources: 2024 Updates to Exemption 3 Statute Resources

DOJ/OIP, FOIA Post, Sept. 12, 2024

The Office of Information Policy (OIP) has posted updates to its compilation of Exemption 3 resources, intended to assist agencies in their administration of the Freedom of Information Act (FOIA) and to increase public understanding of the use of Exemption 3.  These materials are located on the FOIA Resources page of OIP's site. 

Read more here.

Court opinion issued Sept. 9, 2024

Reclaim the Records v. U.S. Dep’t of State (S.D.N.Y.) -- finding that the agency performed an adequate search for “an extract of all information for deceased passport holders maintained in the passport database,” which the agency was unable to produce because of its computer system’s technical limitations; further finding that compiling the requested abstract would be unduly burdensome for the agency, putting aside the issue of whether such an endeavor would require the creation of “new” records.

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

FOIA News: FOIA suit for Prince Harry’s visa records is over; orders sealed

Prince Harry Visa Drugs Case Closed After Secret Ruling

By Jack Royston, Newsweek, Sept. 10, 2024

A lawsuit brought over Prince Harry's visa status by conservative think tank The Heritage Foundation has been terminated, Newsweek can reveal.

The Duke of Sussex wrote in his memoir, Spare, how he had taken drugs including cocaine, marijuana and magic mushrooms. Heritage filed a Freedom of Information Act lawsuit against the Department of Homeland Security demanding the publication of Harry's visa documents, arguing that his use of narcotics should have barred him from living and working in America.

However, court records show that the case was terminated on September 9, when several sealed orders were filed in the case, heard in Washington D.C. before Judge Carl J. Nichols.

Read more here.

Court opinion issued Sept. 6, 2024

Clean Air Council v. U.S. Dep't of the Interior (E.D. Pa.) -- determining that: (1) case was not collaterally estopped by state agency’s decision that one company-intervenor’s feasibility studies were confidential under state open records law, because federal FOIA’ standards were different and plaintiff did not have a “full and fair opportunity” to litigate the federal government’s Exemption 4 claims before the state agency; and (2) affidavits submitted by intervenors and federal government to justify Exemption 4 withholdings did not sufficiently describe the steps that company-intervenors “customarily” took to keep the type of information at issue confidential; further noting that parties had not executed a separate confidentiality agreement and that their final contract stated that certain information could be publicly released via statutorily-required compliance reviews; and (3) defendants failed to establish that disputed records were submitted with government’s express or implicit assurance of privacy, rejecting argument that procurement regulations providing confidentiality to “source selection” records applied in this case.

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