The federal FOIA Advisory Committee for the 2024-2026 term will meet on December 5, 2024, from 10 a.m. to 1 p.m. Meeting materials and a livestream link are available here.
Monthly Roundup: November 2024
Monthly Roundup (2024)CommentBelow is a summary of the notable FOIA court decisions and news from last month, as well as a look ahead to FOIA events in December.
Court decisions
We identified and posted 11 decisions in November. Of note—for its length at least—is the 79-page opinion issued in Washington Blade v. DOL (D.D.C. Nov. 4, 2024), which devotes two dozen pages to the government’s foreseeable harm explanations (accepting most of them for the deliberative process privilege, but not for attorney-client privilege).
Top news
On November 7, 2024, the Chief FOIA Officers Council met for the second time this year. See a recap from OGIS here.
The 50th anniversary of the 1974 FOIA amendments was observed on November 1, 2024, with panel discussions and a job fair at George Washington University Law School.
December calendar
Dec. 4, 2024: DOJ/OIP Procedural Requirements and Fees Training
Dec. 5, 2024: FOIA Advisory Committee meeting
Dec. 6, 2024: Nomination deadline for DOJs 2025 Sunshine Week FOIA Awards
Dec. 11, 2024: DOJ/OIP Exemption 1 and Exemption 7 Training
Dec. 11-12, 2024: FOIA Love comedy and bluegrass show, Washington, DC
Jobs, jobs, jobs: Weekly report Dec. 2, 2024
Jobs jobs jobs (2024)CommentFederal jobs closing in the next 10 days
Gov’t Info. Specialist, Peace Corps, FP 2-3, Wash., DC, closes 12/5/24 (or 75 applications) (public).
Gov’t Info. Specialist, Peace Corps, FP 2-3, Wash., DC, closes 12/5/24 (or 75 applications) (non-public).
Lead Gov’t Info. Specialist, Dep’t of Health & Human Serv./FDA, GS 14, remote, closes 12/5/24 (non-public).
Gov’t Info. Specialist, Dep’t of Justice/OJP, GS 12-13, Wash., DC., closes 12/6/24 (public).
Gov’t Info. Specialist, Dep’t of the Interior/BSEE, GS 12-13, multiple locations, closes 12/6/24 (non-public).
Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 11-12, Los Angeles, CA, closes 12/6/24 (non-public).
Federal jobs closing on or after Dec. 13, 2024
Att’y Advisor, Dep’t of Justice/Pardon, GS 13-14, Wash., DC, no closing date (public).
Court opinions issued Nov. 26, 2024
Court Opinions (2015-2024)CommentEmpower Oversight Whistleblowers & Research. v. NIH (4th Cir.) -- affirming district court’s decision after finding that: (1) agency’s failure to meet FOIA’s response deadline for issuing a final determination did not preclude summary judgment in agency’s favor or warrant any additional relief for appellant; (2) agency established with “sufficiently detailed” declarations that it performed adequate searches for records concerning the submission and withdrawal of sequencing data regarding the origin of COVID-19; (3) agency properly relied on Exemption 5’s deliberative process privilege to redact draft Q&A in response to a foreign news article, as well as draft responses to a congressional inquiry; and (4) agency properly relied on Exemption 6 to redact contact information of NIH employees and the identity of a Wuhan University researcher, rejecting appellant’s “attenuated” argument that disclosure would promote the public’s knowledge about the origin of the pandemic.
Walker v. Donovan (D.D.C.) -- denying plaintiff’s motion for attorney’s fees stemming from request for Air Force’s investigatory records concerning plaintiff; rejecting plaintiff’s argument that the lawsuit was a catalyst for the release of records, in part because the Air Force began processing plaintiff’s request “well before [plaintiff] initiated his lawsuit”; accepting agency’s explanation that delays were due to “its other duties, including processing [plaintiff’s] FOIA appeal, ‘staffing issues and the press of other business in the Air Force Operations Agency FOIA office,’ . . . and significant telework constraints during the COVID-19 pandemic.”
Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.
FOIA News: Nominations open for worst 2024 FOIA responses
FOIA News (2015-2024)CommentWhat went wrong this year in transparency? Share your stories!
Next Sunshine Week will mark the tenth anniversary of the Foilies, the annual “awards” highlighting those that obstructed the public’s right to know.
By Michael Morisy, Muckrock, Nov. 25, 2024
Have you run into an egregious records denial? Still aching about an agency thwarting the public’s right to know? Just need to vent about the one (FOIA request) that got away? This is your chance to share and commiserate: Submissions are open for nominations to the 2025 Foilies!
Read more here.
Jobs, jobs, jobs: Weekly report Nov. 25, 2024
Jobs jobs jobs (2024)CommentFederal jobs closing in the next 10 days
Gov’t Info. Specialist, Dept of the Navy, GS 9-11, Arlington, VA, closes 11/25/24 (non-public).
Gov’t Info. Specialist, Dep’t of the Army, GS 11, Fort Gregg-Adams, VA, closes 11/25/24 (internal agency).
Sup. Gov’t Info. Specialist, Dep’t of Health & Human Serv./FDA, GS 14, remote, closes 11/25/24 (non-public),
Attorney Advisor, Dep’t of Transportation/PHMSA, GS 14, Wash., DC, closes 11/25/14 (public).
Gov’t Info. Specialist, U.S. Int’l Trade Comm’n, GS 12-13, Wash., D.C., closes 11/25/24 (non-public).
Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Providence, RI, closes 11/25/24 (non-public).
Gov’t Info. Specialist, Dep’t of the Navy, GS 11, Wash., DC, closes 11/26/24 (non-public).
Gov’t Info. Specialist, Dep’t of Veterans Affairs, GS 11-12, Martinsburg, WV, closes 11/26/24 (internal agency).
Sup. Gov’t Info. Specialist, Dep’t of the Treasury/OFAC, GS 15, Wash., D.C., closes 11/26/24 (public).
Sup. Gov’t Info. Specialist, Dep’t of the Treasury/OFAC, GS 15, Wash., D.C., closes 11/26/24 (non-public).
Gov’t Info. Specialist, Dep’t of Health & Human Serv./HRSA, GS 13, Rockville, MD, closes 11/26/24 (non-public).
Sup. Gov’t Info. Specialist, Dep’t of Veterans Affairs. GS 9, Overland, MO, closes 11/29/24 (non-public).
Gov’t Info. Specialist, Dep’t of the Army, NH 3, Redstone Arsenal, AL, closes 11/29/24 (non-public).
Gov’t Info. Specialist, Dep’t of Health & Human Serv./CMS, GS 9-11, Woodlawn, MD, closes 11/29/24 (non-public).
Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 11, Jamaica Plain, MA, closes 12/3/24 (internal agency).
Gov’t Info. Specialist, Peace Corps, FP 2-3, Wash., DC, closes 12/5/24 (or 75 applications) (public).
Gov’t Info. Specialist, Peace Corps, FP 2-3, Wash., DC, closes 12/5/24 (or 75 applications) (non-public).
Lead Gov’t Info. Specialist, Dep’t of Health & Human Serv./FDA, GS 14, remote, closes 12/5/24 (non-public).
Federal jobs closing on or after Dec. 6, 2024
Gov’t Info. Specialist, Dep’t of Justice/OJP, GS 12-13, Wash., DC., closes 12/6/24 (public).
Gov’t Info. Specialist, Dep’t of the Interior/BSEE, GS 12-13, multiple locations, closes 12/6/24 (non-public).
Court opinion issued Nov. 21, 2024
Court Opinions (2015-2024)CommentKinnucan v, NSA (W.D. Wash.) -- ruling that the National Security Agency properly withheld a U.S. House committee report related to a 1967 attack by Israeli forces on a U.S. naval intelligence ship, because the report was not an agency record; reasoning that that the facts and circumstances of the report’s creation and its transfer to NSA demonstrated that Congress “manifested a clear intent to maintain control over” the report, which was consistent with the test set forth by the D.C. Circuit in Am. Civil Liberties Union v. CIA, 823 F.3d 655, 662-63 (D.C. Cir. 2016).
Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.
FOIA News: 50th anniversary of 1974 FOIA Amendments
FOIA News (2015-2024)Comment1974 FOIA Amendments Mark Golden Anniversary
By NARA-OGIS, FOIA Ombuds, Nov. 21, 2024
Requesters, the next time you work to “reasonably describe” records in a FOIA request or visit FOIA.gov for agency FOIA data, you can thank the 1974 FOIA amendments. And agency FOIA professionals, you can thank the 1974 FOIA amendments for setting timeframes for agency action on FOIA requests and establishing the one-time 10-working-day extension for “unusual circumstances.”
The week of November 18-22, 2024 marks the 50th anniversary of the amendments, passed by Congress eight years after it passed the original law. The amendments require agencies to publish indices of agency information; established the U.S. District Court in D.C. as a universal venue for FOIA lawsuits; and gave federal judges the power to review classified documents in private to determine whether the records were properly classified.
Read more here.
Court opinions issued Nov. 20, 2024
Court Opinions (2015-2024)CommentSmartflash LLC v. USPTO (D.D.C.) — granting the agency’s summary judgment motion and upholding its application of Exemption 5 and the deliberative-process privilege to six emails concerning the Patent Trial and Appeal Board’s use of “expanded panels”; concluding the communications at issue were pre-decisional and deliberative since they reflected “communications by subordinate employees . . . discussing how to interpret and respond to a prior FOIA request,” and contained “preliminary impressions, analysis, questions, and recommendations”; holding further that the agency conducted an adequate segregability review and demonstrate foreseeable harm in potential “chilling effect” on the FOIA office’s processing of requests; finally, rejecting the requester’s waiver arguments based on either adoption or public disclosure as unwarranted.
Informed Consent Action Network v. FDA (D.D.C) — granting, in part, the agency’s Open America stay motion; noting, among other things, how “FDA received two court orders [in the past three years] that together compelled it to produce approximately 5.7 million pages of COVID-19 vaccine records within a highly compressed timeframe,” and that these production orders have negatively impacted the processing of other requests; rejecting the agency’s proposal for an eighteen-month stay, and instead staying the case for eight months.
Summaries of all published opinions issued in 2024 are available here. Earlier opinions are available here.
FOIA News: DOJ-OIP releases its Standard Operating Procedures
FOIA News (2015-2024)CommentLast month, the Department of Justice’s Office of Information Policy released its Standard Operating Procedures in response to a FOIA request from GovermentAttic.org. The 83-page production consists of two parts: 15 pages pertaining to administrative appeals and a 68-page “Compliance Team Handbook.”
Of interest, OIP employees are instructed to not use gender pronouns or “Mr.” ”Mrs.” or Ms.” in appeal response letters. Neutral titles such as “Dr.” or “Esq.” are acceptable. For DOJ’s “Sunshine Week” event, a compliance team attorney drafts the OIP Director’s remarks. We appreciate that component heads can get busy, but OIP co-founder Dan Metcalfe must be rolling in his grave. Regarding the “DOJ Guide to the FOIA,” the Handbook states that “[t]here is a rotating, 2-year schedule for regular chapter updates. The goal is to implement more regular and recent changes in case law, owing to increased FOIA litigation.” We can’t help but note that of the 25 Guide chapters, only five have been updated since November 2022. We further note that OIP’s “2-year” schedule should be a “two-year” schedule, according to most style guides (including OIP’s house guide).