Court opinion issued Oct. 15, 2024

Jimenez v. DHS (11th Cir.) -- affirming district court’s decision that various DHS components performed adequate searches for records concerning the revocation of plaintiffs’ visa, and that they properly withheld certain records pursuant to Exemption 3 in conjunction with the Immigration and Nationality Act, 8 U.S.C. § 1202(f); rejecting plaintiff’s arguments that DHS’s declarations violated the “best evidence rule in Federal Rule of Evidence 1002,” and that several instances of inconsistent processing rebutted the presumption of good faith accorded to those declarations.

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

FOIA News: CFO Council to meet Nov. 7, 2024

Virtual Meeting of the Chief FOIA Officers Council

DOJ/OIP, FOIA Post, Oct. 16, 2024

The Office of Information Policy (OIP) is pleased to announce that the Chief FOIA Officers (CFO) Council will hold a virtual meeting on Thursday, November 7th 2024 from 10:00 AM to 12:00 PM ET.    

The CFO Council meeting is open to all agency FOIA professionals and members of the public.  Time will be provided for members of the public to address the Council.  Registration is required on Eventbrite.  All attendees must register by 11:59 PM ET on Monday, November 4, 2024.  The meeting will also be livestreamed on the National Archives' YouTube channel.

Read more here.

FOIA News: OIP issues summary and assessment of Chief FOIA Officer Reports

Summary and Assessment of Agency 2024 Chief FOIA Officer Reports and New Guidelines for 2025 CFO Reports Issued

By DOJ/OIP, FOIA Post, Oct. 15, 2024

Today the Office of Information Policy (OIP) is pleased to release its summary and assessment of agencies’ 2024 Chief FOIA Officer (CFO) Reports.  OIP’s 2024 summary and assessment focuses on steps agencies have taken to improve FOIA administration in five key areas highlighted in the Attorney General’s 2022 FOIA Guidelines:

• FOIA Leadership and Applying a Presumption of Openness;

• Ensuring Fair and Effective FOIA Administration;

• Proactive Disclosures;

• Utilizing Technology to Improve Efficiency; and

• Steps Taken to Remove Barriers to Access, Improve Timelines, and Reduce Backlogs.

This past March marked the fifteenth year that agency CFOs submitted these reports to the Department of Justice.

Read more here.

FOIA News: Tech executive suggests tech solutions to handle record number of requests

The federal government is likely to receive a record number of FOIA requests again in 2024

Integrating AI-powered tools into FOIA processing could be a game changer, reducing backlogs, lowering costs, and improving accuracy.

By Amy Hilbert, Commentary, Gov’t Exec., Oct. 15, 2024

In recent years, the federal government has seen a sharp rise in the volume and complexity of Freedom of Information Act requests, creating an overwhelming challenge for government agencies.  

In fiscal year 2023, the federal government received an all-time high of 1,199,644 FOIA requests — a staggering 29% increase from the previous year. According to preliminary data from FOIA.gov, this surge shows no signs of slowing down. In the first three quarters of FY 2024, the federal government has already received more than 928,000 requests — an increase of more than 18% from the same period in the previous year. If the final quarter follows a similar pattern, the number of FOIA submissions will easily surpass 1.3 million for the year. 

This rising volume underscores the public's increasing desire for transparency and accountability. However, the sheer number of requests is only part of the story. The complexity of these requests is also evolving, posing further challenges for government agencies already struggling with reduced staffing levels and outdated technologies. 

This perfect storm of expanding demand and stagnant capabilities has created significant backlogs across many agencies and significantly increased processing and litigation costs. These trends are forcing agencies to rethink how they handle public information requests, with many looking to advanced technologies such as artificial intelligence to alleviate the burden. 

Read more here.

Jobs, jobs, jobs: Weekly report Oct. 14, 2024

Federal positions closing in the next 10 days

Gen. Att’y, Consumer Product Safety Comm., GS 11, Bethesda, MD, closes 10/14/24.

Gov’t Info. Specialist, Dep’t of the Treasury/OFAC, GS 9-13, Wash., DC, closes 10/15/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Treasury/OFAC, GS 9-13, Wash., DC, closes 10/15/24.

Lead Gov’t Info. Specialist, Dep’t of State, GS 13, Charleston, SC, closes 10/16/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Interior, GS 11-13, multiple locations, closes 10/21/24 (non-public).

Federal positions closing on or after Oct. 25, 2024

Gov’t Info, Specialist, Nuclear Reg. Comm’n, GS 13, Rockville, MD, closes 10/25/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 11-12, Martinsburg, WV, closes 10/25/24 (internal to agency).

Lead Gov’t Info. Specialist, Dep’t of State, GS 13, Wash., DC (closes 10/25/24).

Lead Gov’t Info. Specialist, Dep’t of State, GS 13, Wash., DC (closes 10/25/24) (non-public).

Gov’t Info. Specialist, Dep’t of State, GS 12, Wash., DC, closes 10/25/24.

Gov’t Info. Specialist, Dep’t of State, GS 12, Wash., DC, closes 10/25/24 (non-public).

Gov’t Info. Specialist, Dep’t of State, GS 9-11, Wash., DC, closes 10/25/24 (non-public).

Gov’t Info. Specialist, Dep’t of State, GS 9-11, Wash., DC, closes 10/25/24.

Gov’t Info. Specialist, Dep’t of State, GS 9-11, Wash., DC, closes 10/28/24 (non-public).

Sup. Gov’t Info. Specialist, Dep’t of Justice/BOP, GS 13-14, remote, closes 10/29/24 (non-public).

FOIA News: Heritage Foundation's FOIA blitz divides practitioners

The Heritage Foundation’s Reckless Misuse of FOIA to Target Individuals

By Michael Ravnitzky, LLRX, Oct. 9, 2024

The Heritage Foundation’s current public records campaign is an outright abuse of the FOIA process. In recent years, the Heritage Foundation’s Oversight Project and its publishing spinoff, The Daily Signal, have filed an unprecedented and overwhelming number of FOIA requests – 65,000 according to Reuters and more than 50,000 according to ProPublica. Esquire magazine https://www.esquire.com/news-politics/politics/a62513971/heritage-foundation-foia-requests/ described the volume of requests as “spamming the federal government”.

According to the articles, https://www.propublica.org/article/have-government-employees-mentioned-climate-change-voting-or-gender-identity-the-heritage-foundation-wants-to-know ; https://www.reuters.com/world/us/conservative-think-tank-targeting-nasa-employees-communications-about-musk-trump-2024-10-04/ the goal of the requests is to scrutinize government employees’ communications, to identify (for example, individuals using keywords or phrases such as “climate change”, “reduction in force” or DEI) and potentially remove civil servants perceived as obstructive to Trump’s agenda, in preparation for a potential Trump administration.

Read more here.

Heritage Foundation sends lots of FOIAs. That shouldn’t be a problem

By Lauren Harper, Freedom of the Press Found., Oct. 8, 2024

The Heritage Foundation sends a lot of Freedom of Information Act requests about progressive issues, from climate change to policies on diversity, equity, and inclusion, and it’s causing a stir.

A recent ProPublica article detailed the FOIA campaign, which is allegedly part of Project 2025’s effort to identify agency officials for potential firing.

ProPublica, which obtained the information for its article through its own FOIA requests, suggests that the hundreds of Heritage Foundation requests may intimidate public officials and prevent FOIA offices from effectively responding to “legitimate” requests by clogging the FOIA queues.

Reporting how the Heritage Foundation may use FOIA responses to gut the federal workforce is a worthy endeavor. Implying that FOIAs are illegitimate when the goal is partisan is a slippery slope that could give other agencies an excuse to deny requests they don’t like.

Most importantly, it is not the requesters' fault, even if they are frequent requesters, that the government can’t effectively search and review large amounts of records.

Read more here.

FOIA News: D.C. Circuit to hear FOIA case

The U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument in Hall v. CIA, No. 22-5235, on Friday, October 11, 2024. The issue on appeal is whether the CIA performed an adequate search for records related to prisoners of war from the Vietnam War.

The district court ruled in the government’s favor.

Livestream audio is available here.

Court opinion issued Oct. 7, 2024

Stevens v. ICE (N.D. Ill.) -- determining that: (1) plaintiff failed to exhaust her administrative remedies with respect to several requests for immigration-related records to two DHS components; (2) ruling that seven agencies performed adequate searches for immigration-related records, rejecting plaintiff’s contentions that the agencies were required to describe its general file systems and that the government’s declarations failed to specify the search terms used; (3) USCIS properly withheld records pursuant to Exemption 3 in conjunction with the Immigration and Nationality Act; ICE properly relied on Exemption 4 to withhold contract pricing information from order for services and supplies; USCIS and the Executive Office for Immigration Review properly withheld records pursuant to Exemption 5; ICE and EOIR properly withheld third-party information pursuant to Exemption 6; ICE properly withheld records pursuant to Exemption 7(C); and the Department of State properly relied on Exemption 7(E) to withhold records related to a passport fraud investigation.

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

Monthly roundup: September 2024

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

Court decisions:

We identified and posted 38 decisions issued in September, the highest monthly total of the calendar year. A number of decisions stood out. The Department of Defense was twice rapped on the knuckles for summarily denying duplicate requests. See Walsh v. Dep’t of the Navy (D.S.D Sept. 4, 2024) (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); Wonder v. Dep’t of the Army Office of Gen. Counsel (D.D.C. Sept. 11, 2024) (concluding that 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). Further, a requester drew a costly rebuke in Louise Trauma Ctr. v. Wolf (D.D.C. Sept. 18, 2024), a case in which plaintiff was found to be both eligible and entitled to attorney’s fees but was denied any award because of vague and erroneous time records, “extraordinarily lack of billing judgment,” and its history of “unreasonable and improper billing practices.” And the U.S. Court of Appeals for the Ninth Circuit held—in a case of first impression in that circuit—that a requester is not required to file an administrative appeal when an agency issues a response after requester has properly filed a lawsuit. See Corbett v. Transp. Sec. Admin. (9th Cir. Sept. 10, 2024).

Top News:

• The 2024-2026 term of the federal FOIA Advisory Committee kicked off its work with two full Committee meetings on September 9th and September 13th.

• On September 26, 2024, the Office of Government Information Services published the results of four FOIA-related survey questions from the 2023 Records Management Self-Assessment. Earlier in the month, OGIS reminded agencies about the government’s guidance on still-interested letters.

• On September 12, 2024, the Office of Information Policy issued an updated list of qualifying Exemption 3 statutes.

October calendar:

Oct. 11, 2024: The D.C. Circuit will hear oral argument in Hall v. CIA, No. 22-5235, which will consider whether the CIA performed an adequate search for records related to Vietnam War prisoners of war.

Oct. 16, 2024: Chief FOIA Officer Report Refresher Training by OIP.

Oct.. 24, 2024: The D.C. Circuit will hear oral argument in Human Rights Defense Center v. U.S. Park Police, No. 23-5236, which concerns the applicability of Exemption 6 to withheld records and whether inadvertently released records may be clawed back by the agency.

Oct. 25, 2024: Due date for agency Quarter 4 FOIA data.

Oct. 29, 2024. Annual Summit hosted by OPEXUS.

Court opinion issued Oct. 1, 2024

Mermelstein v. DOJ (E.D.N.Y.) -- holding that the doctrine of res judicata precluded plaintiff’s claim disputing the adequacy of FBI’s search for records concerning plaintiff’s conviction for medical insurance fraud, because plaintiff brought the same claim against the FBI in 2019 and lost before the district court and the Second Circuit; rejecting plaintiff’s suggestion that any new evidence became available between plaintiff’s claims, let alone that such evidence was fraudulently concealed or could not have been discovered with due diligence in the prior action.

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