FOIA News: DOJ announces agency reporting deadlines

The U.S. Department of Justice’s Office of Information Policy has announced agency deadlines for the submission of Fiscal Year 2024 Annual FOIA Reports, Fiscal Year 2025 Quarterly FOIA Reports, and 2025 Chief FOIA Officer Reports. Read more here.

FOIA News: D.C. Circuit to hear FOIA argument on 10/4/24

The U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument in Georgia v. DOJ, No. 20-5083, on Friday, October 4, 2024. The issue on appeal is whether Exemption 5’s consultant corollary doctrine protects certain communications between DOJ and outside parties in lawsuits where plaintiffs entered into a common interest agreement with DOJ.

The district court ruled against the government.

Livestream audio is available here.

FOIA News: Heritage Foundation deluging agencies with requests on taxpayers' dime

Heritage Foundation Staffers Flood Federal Agencies With Thousands of Information Requests

The conservative think tank has filed thousands of public-information requests, clogging the pipeline at federal agencies in an apparent attempt to find employees a potential Trump administration would want to purge.

By Sharon Lerner and Andy Kroll, ProPublica, Oct. 1, 2024

Three investigators for the Heritage Foundation have deluged federal agencies with thousands of Freedom of Information Act requests over the past year, requesting a wide range of information on government employees, including communications that could be seen as a political liability by conservatives. Among the documents they’ve sought are lists of agency personnel and messages sent by individual government workers that mention, among other things, “climate equity,” “voting” or “SOGIE,” an acronym for sexual orientation, gender identity and expression.

The Heritage team filed these requests even as the think tank’s Project 2025 was promoting a controversial plan to remove job protections for tens of thousands of career civil servants so they could be identified and fired if Donald Trump wins the presidential election.

See more here.

FOIA News: NIH's "FOIA Lady" subpoenaed by House Oversight’s pandemic subcommittee

BREAKING: “FOIA Lady” Plans to Plead the Fifth After Wenstrup Announces Subpoena for Her Testimony

Ms. Margaret Moore, a lead staffer in NIH’s FOIA office, allegedly taught NIAID officials how to “make emails disappear”

Press Release, U.S. House of Rep., Comm. on Oversight & Accountability, Sept. 30, 2024

WASHINGTON — Today, Select Subcommittee on the Coronavirus Pandemic Chairman Brad Wenstrup (R-Ohio) announced a subpoena to compel Ms. Margaret Moore — known infamously as the National Institutes of Health’s (NIH) “FOIA Lady” — to appear for a deposition on October 4, 2024. Documents suggest that Ms. Moore was involved in a conspiracy to teach National Institute of Allergy and Infectious Diseases (NIAID) officials how to evade the Freedom of Information Act (FOIA) and avoid public transparency related to the COVID-19 pandemic. Ms. Moore’s counsel has informed the Select Subcommittee that his client plans to invoke her Fifth Amendment against self-incrimination during the deposition on Friday.

Read more here.

Jobs, jobs, jobs: Weekly report Sept. 30, 2024

Federal jobs closing in the next 10 days

Sup. Gov’t Info. Specialist, Dep’t of Homeland Sec./USCIS, GS 11, closes 9/30/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Army, GG 7-11, Fort Meade, MD, closes 10/1/24.

Sup. Gov’t Info. Specialist, Dep’t of Veterans Affairs, GS 13, remote, closes 10/1/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Interior/BSES, GS 9-11, Jefferson. LA, closes 10/2/24.

Gov’t Info. Specialist, Dep’t of the Interior/BSES, GS 9-11, Jefferson. LA, closes 10/2/24 (non-public).

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

Gen. Att’y, Consumer Product Safety Comm., GS 11, Bethesda, MD, closes 10/7/24.

Gov’t Info. Specialist, Dep’t of Labor/OASAM, GS 13, location negotiable, closes 10/7/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Treasury/IRS. GS 13, nationwide, closes 10/7/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 9, Orlando, FL, closes 10/7/24 (non-public)

Gov’t Info. Specialist, Dep’t of the Interior/NPS, GS 12, Wash., DC, closes 10/8/24 (non-public).

Gov’t Info. Specialist, Dep’t of Commerce/NOAA, ZA 2-3, Gloucester, MA, closes 10/9/24 (non-public)

Gov’t Info. Specialist, Dep’t of Commerce/NOAA, ZA 2-3, Gloucester, MA, closes 10/9/24.

Gov’t Info. Specialist, Dep’t of Justice/BOP, GS 12, remote, closes 10/10/24 (non-public).

Federal jobs closing on or after Oct. 11, 2024

Gov’t Info. Specialist, Dep’t of the Treasury/BEP, GS 12-13, Wash., DC, closes 10/11/24 (non-public)

FOIA News: DOJ pays fees after wining Exemption 4 case

DOJ Will Pay Attorneys' Fees in Lethal Injection FOIA Dispute

By Daniel Seiden, Bloomberg Law, Sept. 26, 2024

The US Department of Justice will pay $65,266 in attorneys’ fees and expenses to settle a Freedom of Information Act dispute with a non-profit organization concerning the government’s supply of pentobarbital used in lethal injections, a federal district court filing said.

This settlement with Citizens for Responsibility & Ethics in Washington will release the government from any future expenses claimed in this case, filed by the organization at the US District Court for the District of Columbia in 2019, the Wednesday notice of settlement said.

Read more here (subscription required).

See district court’s 2024 decision here.

FOIA News: Prince Harry’s visa records are exempt, rules court

Judge rejects Heritage Foundation bid to release Prince Harry visa records

The conservative think tank argued the public had an interest in how the Department of Homeland Security handled Harry’s application given his past drug use.

By Annabelle Timsit, Wash. Post, Sept. 24, 2024

A U.S. judge has denied a petition by the Heritage Foundation to release Prince Harry’s immigration records, ruling that the British royal’s right to privacy outweighs the public-interest arguments cited by the conservative think tank.

The Heritage Foundation and one of its employees, Mike Howell, sued the Department of Homeland Security last year after the agency denied the group’s request to release information relating to any disclosures Harry may have made about his past drug use when securing entry into the United States. The request came shortly after the release of Harry’s memoir, “Spare,” in which the Duke of Sussex revealed that he had used cocaine, cannabis and psychedelic mushrooms.

D.C. District Judge Carl J. Nichols, who was appointed by President Donald Trump in 2019, denied the Heritage Foundation’s request in a filing published Monday.

Read more here.

Court opinions issued Sept. 18-23, 2024

Sept. 23, 2024

First Look Media Works, Inc. v. U.S. Agency for Global Media (D.D.C.) — adopting magistrate judge’s report and recommendation that found plaintiffs ineligible for attorney’s fees because plaintiffs failed to establish that their lawsuit caused agency to change its position; taking into account that plaintiff sued after only 55 days after making its request and that agency’s delay was credibly explained by a sudden spike in requests.

Heritage Found. v. DHS (D.D.C.) — following in camera review of certain immigration records concerning the Duke of Sussex (“Prince Harry”) and associated declarations, deciding that DHS properly withheld records, or refused to confirm or deny their existence, pursuant to Exemptions 6 and 7(C); in reaching its decision, the court found that the Duke had more than a de minimis privacy interest in his immigration material despite being a public figure and that “disclosure of records about a single admission of a foreign national . . . would provide the public, at best, limited information about the Department’s general policy in admitting aliens.”

Wright v. FBI (D.D.C.) — on renewed summary judgment, concluding that it would be unduly burdensome for agency to fulfill a request for certain records concerning mosques because the responsiveness review would take 88,570 hours to 154,526 hours, respectively, and cost millions of dollars

Donahue v. NARA (D.D.C.) — concluding that NARA and the CIA performed adequate searches for records pertaining to plaintiff, a former merchant marine servicing a life sentence for sex crimes, and that the CIA properly relied on Exemptions 1 and 3 in refusing to confirm or deny the existence of records whose association with the agency was classified.

Sept. 20, 2024

Project on Gov't Oversight v. DOJ (D.D.C.) — holding that DOJ properly relied Exemption 5’s attorney-client privilege to redact certain titles of Office of Legal Counsel opinions and the names of corresponding agency clients from lists of OLC opinions covering 21 years.

Grand Marina Inv'rs v. IRS (D.D.C.) — ruling that plaintiff failed to exhaust its administrative remedies with respect to multiple requests, but allowing a portion of one request to proceed because the IRS discretionarily accepted and fully processed an administrative appeal of an interim response.

Deryck v. DOD (D.D.C.) — finding, in most relevant part, that the Department of the Navy performed a reasonable search for records concerning the revocation of plaintiff’s security clearance.

Am. Civil Liberties Union v. ICE (N.D. Cal.) — concluding that electronic law library materials provided to ICE detainees were controlled by a private company, not ICE, and therefore were not agency records subject to FOIA.

Conley v. ICE (E.D. Tenn.) — determining that ICE performed an adequate search for records related to certain agreements between ICE and the Knox County Sheriff's Office, and that ICE’s processing delays and failure to adjudicate plaintiff’s request for expedition did not entitle plaintiff to any relief.

Brown v. USCIS (D.D.C.) — deciding not to dismiss plaintiff’s claim even though plaintiff filed his suit prematurely, because plaintiff subsequently amended the complaint after agency missed its response deadline; discounting government’s “slippery slope” concern that future litigants would intentionally sue in the same manner.

Sept. 18, 2024

Bierly v. DOD (D.D.C.) — concluding, in relevant part, that: (1) plaintiff failed to exhaust his administrative remedies with respect to three of six requests to the Defense Counterintelligence and Security Agency concerning the loss of his security clearance; (2) agency performed an adequate search and properly withheld certain records pursuant to Exemptions 3 (Bank Secrecy Act), 5 (DPP), 6, and 7(E).

Louise Trauma Ctr. v. DOJ (D.D.C.) — finding that plaintiff was entitled to and eligible for attorney’s fees for only one of its multiple requests, and reducing plaintiff’s proposed award to account for plaintiff’s unsuccessful work, lack of billing judgment, and excessive time spent on its fee motion.

Louise Trauma Ctr. v. Wolf (D.D.C.) — ruling that: (1) plaintiff was eligible for attorney’s fees because its litigation was the “most natural explanation for the sudden movement” on plaintiff’s FOIA requests; (2) plaintiff was also entitled to attorney’s fees, notwithstanding the government’s seemingly valid argument that plaintiff was “a front for the collection of attorney’s fees”; and (3) no award was warranted, however, because plaintiff’s time records were “vague, inadequately descriptive, or made in error,” the request was “grossly out of line with requests in similar cases, reflecting an extraordinary lack of billing judgment,” and plaintiff has been “admonished repeatedly” for engaging in the “same unreasonable and improper billing practices.”

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

FOIA News: OGIS issues results of FOIA compliance survey

The Office of Government Information Services has released an analysis of agency FOIA compliance based on four survey questions that were included in NARA’s annual records management self-assessment for 2023. Here were the key results:

• The 2023 data reflect a 5-percentage point increase in agency FOIA programs reporting minimal or no pandemic-related impact to the FOIA backlog (84 percent) over 2022 (79 percent). The number of agencies reporting a continuing moderate or significant negative impact to the backlog caused by the pandemic dropped 2-percentage points from 2022 to 16 percent.

• A majority of agencies (59 percent) post records only on an ad-hoc basis (“as needed”) when no FOIA request has been filed.

• Agencies continue to struggle with providing FOIA  information, context, and guidance to requesters on their FOIA websites.

• Almost half (48 percent) of respondents reported including language covering FOIA obligations in contracts for services and products.

Jobs, jobs, jobs: Weekly report 9/23/24

Federal positions closing in the next 10 days

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).

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

Gov’t Info. Specialist, Dep’t of the Air Force, GS 9, Langley AFB, VA, closes 9/26/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Air Force, GS 12, MacDill AFB, Fla., closes 9/26/24 (non-public).

Sup. Gov’t Info. Specialist, Dep’t of Homeland Sec./USCIS, GS 11, closes 9/30/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Interior/BSEE, GS 9-11, Jefferson, LA, closes 10/2/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Interior/BSEE, GS 9-11, Jefferson, LA, closes 10/2/24.

Federal positions closing on or after Oct. 4, 2024

Gov’t Info. Specialist, Dep’t of Justice/BOP, GS 12, remote, closes 10/10/24 (non-public).