FOIA News: Recap of CFO Council meeting

The Office of Government Information Services has posted a recap of the Chief FOIA Officers Council meeting held on Friday, November 7, 2024.

FOIA News: Texas AG seeks to preserve Special Counsel's Trump files; FOIA request still pending

Texas Seeks to Stop Special Counsel From Erasing Trump Files

By Bernie Pazanowski, Bloomberg Law, Nov. 12, 2024

Texas Attorney General Ken Paxton (R) asked a federal court to prevent special counsel Jack Smith from destroying documents related to his investigation and prosecution of president-elect Donald Trump.

After Trump won reelection, Paxton’s office filed a Freedom of Information Act request for records from Smith’s investigation into Trump’s alleged criminal activities during his first term as president. Fearing that Smith will destroy the records, Paxton seeks a temporary restraining order from the US District Court for the Northern District of Texas. The case was assigned to Judge Matthew J. Kacsmaryk, who was appointed by Trump.

Read more here.

Jobs, jobs, jobs: Weekly report Nov. 11, 2024

Federal positions closing in the next 10 days

Gov’t Info. Specialist, Dep’t of the Navy, NH 3, Wash., DC, closes 11/12/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Columbia, MO, closes 11/12/24 (internal to agency).

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

Lead Gov’t Info. Specialist, Dep’t of Transportation/FHA, GS 14, closes 11/13/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Treasury/IRS, GS 12, multiple locations, closes 11/15/24 (non-public)

Information Release Specialist, Dep’t of the Army, GS 9-12. Quantico, VA, closes 11/15/24 (non-public).

Gov’t Info. Specialist, Dep’t of Health & Human Serv./FDA, GS 13, remote, closes 11/18/24 (non-public).

Gov’t Info. Specialist, Dep’t of Health & Human Serv./CMS, GS 13, Woodlawn, MD, closes 11/18/24 (non-public).

Gov’t Info. Specialist, Fed. Deposit Ins. Corp., CG 12, multiple locations, closes 11/18/24 (internal to agency).

Gov’t Info. Specialist, Dep’t of Labor/OSHA, GS 9, Birmingham, AL Region, closes 11/18/24 (public).

Gov’t Info. Specialist, Dep’t of the Air Force, GS 11-12, Quantico, VA, closes 11/19/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Manchester, NH, closes 11/20/24 (non-public).

Federal positions closing on or after Nov. 22, 2024

Attorney Advisor, Dep’t of Transportation/PHMSA, GS 14, Wash., DC, closes 11/25/14 (public).

Court opinions issued Nov. 1-5, 2024

Nov. 5, 2024

Stonehill v. IRS (D.D.C.) — in yet another case concerning the 1962 Stonehill raids, granting the plaintiff’s motion to substitute but denying its motion to set aside a 2008 judgment pertaining to search adequacy and certain exemption claims on the theory that the agency lied about missing boxes of responsive documents; holding, firstly, that the plaintiff’s motion, which seemed to arise under Federal Rule of Civil Procedure 60(b)(3), should have been filed within a year from entry of judgment (i.e., in 2009), and that any effort to recharacterize the motion as arising under Rule 60(b)(6) to avoid that time limitation is unavailing; holding further that a motion pursuant to the court’s inherent powers, while timely, cannot satisfy “the extraordinarily high standard for establishing fraud on the court” because allegations of falsely submitted declarations would constitute “fraud between the parties”; noting the plaintiff also had not established any alleged fraud “by clear and convincing evidence,” let alone shown how the court was misled by such fraud in reaching its judgment.

Buckley v. DOJ (W.D.N.Y.) — denying a motion for attorney’s fees and costs because plaintiff neither “substantially prevailed by way of a court order” nor under the so-called “catalyst theory,” if only because the agency “promptly released the records upon receipt of the necessary” Privacy Act consent forms (DOJ-361s) shortly after commencement of the lawsuit.

Nov. 4, 2024

Wash. Blade v. Dep’t of Labor (D.D.C.) — with a very lengthy opinion, granting in part and denying in part each party’s motion for summary judgment in a case concerning records about religious entity exemptions withheld under Exemption 5, in conjunction with the attorney-client and deliberative-process privileges; of most interest: (1) allowing the agency “one more chance” to “meet it burden” with respect to the claimed privileges as applied to certain records, such as draft responses to congressional inquiries; (2) rejecting the agency’s use of privilege with draft press releases “adopted” by decision-makers; (3) clarifying the deliberative-process privilege extends to communications about any “matter within the agency’s managerial, organizational, or administrative ambit,” including the drafting of responses to inquiries from non-profit organizations; (4) also clarifying that Exemption 5 cannot be used to withhold communications providing guidance on how to resolve novel issues in a definitive way, because the “working law” exception applies even to "routine” matters; (5) rejecting the deliberative-process privilege vis-à-vis employee “reactions” to a press release that otherwise involved no “recommendations” about “how best to preserve or promote the Department’s goals or responsibilities”; (6) rejecting the attorney-client privilege as applied to records containing legal advice that were not subsequently kept confidential, or which merely included a lawyer on a communication that did not seem to involve any request for legal advice, or which merely constituted a “summary of verbal communication” from an agency attorney; (7) with respect to foreseeable harm, deciding that some of the agency’s analysis pertaining to records withheld under the deliberative-process privilege was “cursory,” “barely sufficient,” or “just shy of what is required,” and directing the agency to “tak[e] the time to offer more complete explanations” in the future; and, finally, (8) summarizing relevant caselaw and articulating a standard for foreseeable harm in the context of the attorney-client privilege, while also concluding the agency had failed to satisfy that standard in this case due to its “open-ended” and incomplete descriptions of supposed harms that even hinted disclosure “might pose no risk at all.”

Nov. 1, 2024

Documented v. DHS (D.D.C) — denying the government’s motion for reconsideration of an order directing DHS to disclose a memo designating Somalia for Temporary Protected Status (“TPS”) because the agency “failed to articulate, with reasonable specificity, a foreseeable harm that would likely result from its disclosure”; explaining how “the agency's summary judgment briefing and declarations provide no reason to believe that Somalia's TPS designation, or TPS designations in general, are so peculiarly controversial that agency personnel would rather eschew candid discussion than risk public disclosure of their deliberations”; explaining further that, “[i]f the abstract threat that a record may be used in future litigation were enough by itself to satisfy FOIA's foreseeable harm requirement, that requirement would be reduced to a nullity”; finally, admonishing DHS to raise its strongest and most pointed arguments against disclosure from the outset, rather than relying on “boilerplate, unparticularized, and hypothesized” predictions of future harm.

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

FOIA News: Sierra Club boss vows ‘massive FOIA operation’

Sierra Club boss vows ‘massive FOIA operation’

By Robin Bravender, E&E News, Nov. 7, 2024

The Sierra Club plans to launch a “massive FOIA operation” to keep tabs on the incoming Trump administration, the green group’s leader said Thursday.

The club will be watching President-elect Donald Trump’s incoming appointees “very, very closely,” Executive Director Ben Jealous told reporters Thursday. “You can anticipate that we will have a massive FOIA operation up and running, and we will go after them very aggressively.”

Read more here.

FOIA News: FOIA Advisory Committee to meet on Dec. 5th

The federal FOIA Advisory Committee will hold its third meeting of the 2024-2026 term on December 5, 2024, according to a Federal Register notice issued today by the Office of Government Information Services. The meeting will be virtual and is open to the public. Meeting materials will be posted here.

Jobs, jobs, jobs: Weekly report Nov. 4, 2024

Federal positions closing in the next 10 days

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Salt Lake City, UT, closes 11/4/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Salt Lake City, UT, closes 11/4/24.

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Albany, NY, closes 11/4/24 (agency only).

Gov’t Info. Specialist, Dep’t of the Army, GS 12, Stuttgart, Germany, closes 11/5/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Air Force, GS 9, McConnell AFB, KS, closes 11/5/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs, GS 12, Beckley, WV, closes 11/6/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Treasury/IRS, GS 7-11, nationwide locations, closes 11/7/24 (non-public).

Sup. Program Analyst, Dep’t of Def./DHA, GS 14, Falls Church, VA, closes 11/7/24 (non-public).

Gov’t Info. Specialist, Dep’t of the Interior/NIGC, GG 12, remote, closes 11/8/24.

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

Lead Gov’t Info. Specialist, Dep’t of Transportation/FHA, GS 14, closes 11/13/24 (non-public).

Federal positions closing on or after Nov. 15, 2024

Gov’t Info. Specialist, Dep’t of the Treasury/IRS, GS 12, multiple locations, closes 11/15/24 (non-public)

Attorney Advisor, Dep’t of Transportation/PHMSA, GS 14, Wash., DC, closes 11/25/14.

FOIA News: DC Circuit to hear argument in Glomar case

On Monday, November 4, 2024, the U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument in Project for Privacy & Surveillance Accountability, Inc. v. Department of Justice (No. 22-5303).

PPSA seeks records from six agencies about the possible surveillance of 48 Members of Congress who serve or served on intelligence oversight committees. Those agencies have refused to confirm or deny the existence of responsive records, however, and a lower court ruled that the government’s Glomar responses were appropriate.

Livestream audio will be available here.

Monthly roundup: October 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 November.

Court decisions

We identified and posted 10 decisions in October, a sizeable decrease from the 38 decisions issued in September. A pair of rulings denying preliminary injunctions sought by Heritage Foundation might have brought smiles to agency FOIA professionals deluged by requests from the conservative organization’s so-called “oversight” project. See Heritage Found. v. Dep’t of State (D.D.C. Oct. 29, 2024); Howell v. DHS (D.D.C. Oct. 25. 2024) (remarking that Heritage’s “premature attempt to return to this Court with a highly similar request borders on the vexatious”).

Top News

On October 15, 2024, OIP released its assessment and summary of agency Chief FOIA Officer Reports for FY 2024.

ProPublica reported on October 1, 2024, that the Heritage Foundation was flooding federal agencies with FOIA requests “in an apparent attempt to find employees a potential Trump administration would want to purge.”

November calendar

November 4, 2023: D.C. Circuit argument in Proj. for Privacy & Surveillance Accountability v. DOJ

November 6, 2024: Introduction to the Freedom of Information Act Training (federal employees)

November 7, 2024: Chief FOIA Officers Meeting

November 12, 2024: Deadline for agencies to submit Fiscal Year 2024 Annual FOIA Report to OIP

November 13, 2024: Litigation Seminar (federal employees)

Court opinions issued Oct. 29-31, 2024

Oct. 31, 2024

Leopold. v. Def. Intelligence Agency (D.D.C.) — in a case involving the redaction of two email messages responsive to a request concerning Michael’s Flynn’s tenure at DIA and as a subject to Special Counsel Mueller’s investigation, denying each party’s motion for summary judgment; holding that the technical requirements for use of Exemption 5 and the deliberative-process privilege were satisfied; yet concluding the DIA’s foreseeable harm analysis was inadequate because the agency did not adequately explain how disclosure would interrupt or chill internal deliberations over official travel decisions; noting how the Court “is hesitant” to order the documents produced, given the potential “impact [on] foreign relations with one this country’s closest allies,” and thus providing DIA with the opportunity to file a supplemental declaration concurrent with in camera review of the email records at issue.

Oct. 29, 2024

Am. First Legal Found. v. FBI (D.D.C.) — granting the government’s motion for summary judgment in a case concerning records of the FBI’s background investigations into DHS Secretary Alejandro Mayorkas; holding, firstly, that the agency’s search was adequate given the detailed nature of the FBI’s “61-page affidavit” and, in so doing, rejecting the requester’s contention that the FBI was required to search email accounts when email correspondence was not specified in the request; relatedly concluding that the agency had not improperly narrowed the timeframe of its search; holding, further, that the FBI properly withheld records on a categorical basis under Exemptions 6 and 7(C), and that the requester offered only “bare suspicion” of why disclosure would serve the public interest by, among other things, demonstrating legal or ethical violations on the part of Secretary Mayorkas or other government officials; finally, holding that the FBI demonstrated compliance with the FOIA’s segregability requirement.

Heritage Found. v. Dep’t of State (D.D.C.) — denying the requesters’ motion for a preliminary injunction requiring expedited processing and completed disclosure of non-exempt records “by October 25, 2024” in a case involving records related to Ukrainian President Volodymyr Zelensky’s visit to an American munitions plant; holding that the requesters “have not established that the records they seek are so central or highly relevant to the electoral choice voters will make . . . or essential to the integrity of the election, that a preliminary injunction is needed to avoid irreparable harm”; holding further that the requesters otherwise “cannot rely only on a statutory entitlement to expedited processing to show [the] irreparable harm” required for preliminary injunctive relief.

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