FOIA News: Court orders FDIC to reprocess crypto letters

FDIC Must Reconsider Redactions Of Crypto 'Pause' Letters

By Aislinn Keely, Law 360, Dec. 12, 2024

A Washington, D. C. federal judge told the Federal Deposit Insurance Corporation on Thursday to "make more thoughtful redactions" of certain crypto-focused letters it handed over in response to a Freedom of Information Act lawsuit filed on behalf of crypto exchange Coinbase, since the regulator's heavy-handed first pass seemed to lack a "good-faith effort."

A text order from the U.S. District Judge Ana C. Reyes directed the FDIC to re-review four heavily redacted crypto letters and submit updated versions by Jan. 3. Judge Reyes warned that the agency “should be prepare to defend each new redaction in an ex parte discussion with the Judge.”

The letters are at the center of a legal battle between the FDIC and History Associates, a research consultancy with experience in FOIA requests that Coinbase hired to chase down any paper trail of an alleged “deliberate and concerted effort by the FDIC and other financial regulators” to box crypto out of the banking system.

Read more here (accessible with free trial subscription).

FOIA News: Border Protection Says It’s Swamped

Border Protection Says It's Swamped With FOIA Requests

By Tom Lotshaw, Law360, Dec. 12, 2024

U. S. Customs and Border Protection told a judge it is working to hand over records Texas Attorney General Ken Paxton requested months ago, but said a spike in document requests has made it "almost impossible" to meet Freedom of Information Act deadlines..

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In a joint scheduling report filed Tuesday, CBP said a staff of 31 full-time employees works to respond to FOIA requests on a “first-in, first-out basis,” but added that it received nearly 180,00 such requests in fiscal year 2024—a 25% jump from the prior year.”

Read more here (accessible with free trial).

FOIA News: Replace FOIA personnel with artificial intelligence, opines think tank

Government Efficiency Starts with Rejuvenating FOIA

By Marc Joffe, Cato Inst., Dec. 11, 2024

The new Department of Government Efficiency (DOGE) is a promising adjunct to the second Trump administration that proposes to identify and root out billions or even trillions of dollars of federal waste, fraud, and abuse. To properly manage the problem of government inefficiency, it is best to measure it with big data on federal spending. But as those of us who have been studying wasteful federal programs know, getting the necessary data has become more and more difficult.

The primary tool available to outside analysts is the Freedom of Information Act (FOIA), a 1966 law that allows members of the public to obtain government documents. Sadly, the heydays of executive branch compliance with FOIA are long behind us. Today, departments and agencies rarely respond to complex requests within the twenty working days specified by the law and often have to be taken to court to disclose anything at all. FOIA includes a variety of exceptions that bureaucrats interpret liberally, claiming the right to heavily redact documents or withhold them.

Read more here.

FOIA News: OIP updates two sections of the FOIA Guide

The Office of Information Policy recently posted updated versions of two sections of the Department of Justice Guide to the Freedom of Information Act, specifically the Introduction (posted 12/3/24) and Exemption 7 (posted 12/5/24). A cursory examination of these updates indicates that OIP should not be taking a bow, however.

The Guide’s Introduction, which OIP had not updated since February 14, 2020, now contains a concluding paragraph addressing Attorney General Garland’s March 15, 2022 FOIA memorandum. Many of the revisions on the preceding pages are purely stylistic, for example, replacing straight quotes with smart quotes. For math lovers, this update to the 12-page Introduction took a whopping 1754 days. Granted, no update may have been really needed here until March 15, 2022, but the delay from that later date is still eye-opening at 994 days. Camelot this was not.

Regarding section Exemption 7, which OIP had not updated since January 27, 2022 (1043 days), OIP makes a startling statement in an asterisk footnote: “This section primarily includes case law, guidance, and statutes up until March 31, 2023. While some legal authorities after this date may be included, for a comprehensive accounting of all recent court decisions, please visit OIP’s Court Decisions webpage (https://www.justice.gov/oip/court-decisions-overview).” In other words, OIP apparently had better things to do than completing this Guide section. True to its word, OIP cited only three decisions from 2023. A search of OIP’s Court Decisions site, however, reveals that at least 20 more Exemption 7 threshold decisions—10 from 2023 and 10 from 2024—were on point.

FOIA News: Radio interview with creator of FOIA comedy show

On December 10, 2024, Tom Temin, the host of The Federal Drive on WFED radio, interviewed Cutis Raye, the creator of the “FOIA Love” comedy show. Listen to the interview or read the transcript here. Upcoming performances are in Washington, D.C. on December 11th and 12th.

FOIA News: Access to intelligence records

Using FOIA to Access Intelligence Community Records

By NARA/OGIS, FOIA Ombuds Observer (No. 2025-02), Dec. 9, 2024

Requesters regularly contact the Office of Government Information Services (OGIS) about their Freedom of Information Act (FOIA) requests for access to records held by the Intelligence Community (IC), a group of 18 federal government agencies that collect, analyze and deliver intelligence and counterintelligence to U.S. leaders. As with any FOIA request, requesters need to know which agency holds the records they seek and how to submit a request.

Read more here.

Court opinions issued Dec. 6, 2024

Pub. Health & Med, Professionals for Transparency v. FDA (N.D. Tex.) -- denying FDA’s summary judgment motion after concluding that the agency’s search for records pertaining to Pfizer’s Covid-19 vaccine improperly omitted the agency’s Emergency Use Authorization file.

Intercept Media v. Nat’l Parks Serv. (S.D.N.Y.) -- determining that: (1) agency’s investigation into whether an employee wrongfully killed a gray wolf qualified as “law enforcement” for Exemption 7 purposes, because the results of the investigation could have resulted in criminal liability; (2)(a) subject of investigation had no privacy interest in the details about the incident he disclosed to the media; (b) despite subject’s low rank, public interest in disclosure outweighed subject’s limited privacy interest in non-public investigatory details; (3) agency properly withheld identifying information about third parties, such as the complainant, witnesses, suspected co-conspirators, and other third parties, pursuant to Exemption 7(C); and (4) based on court’s in camera review of disputed records, agency was required to segregate and disclose non-identifying information pertaining to third parties.

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

Jobs, jobs, jobs: Weekly report Dec. 9, 2024

Federal positions closing in the next ten days

Att’y Advisor, Dep’t of Transportation/PHMSA, GS 14, Wash., DC, closes 12/9/24 (public).

Gov’t Info. Specialist, Dep’t of Health & Human Serv./NIH, GS 11-13, Montgomery Cnty., MD, closes 12/9/24 (non-public).

Gov’t Info. Specialist, Dep’t of Health & Human Serv./NIH, GS 11-13, Montgomery Cnty., MD, closes 12/9/24 (public).

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

Sup. Gov’t Info. Specialist, Dep’t of Educ., GS 15, Wash., DC, closes 12/10/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs, GS 11-12, Salt Lake City, UT, closes 12/10/24 (public).

Gov’t Info. Specialist, Dep’t of Homeland Sec./USCIS, GS 13-15, remote, closes 12/11/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Dublin, GA, closes 12/13/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs, GS 11-12, Austin, TX, closes 12/13/24 (non-public).

Mgmt. & Program Analyst, Nat’l Archives & Records Admin/OGIS, GS 12-13, College Park, MD (non-public)

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Columbia, MO, closes 12/16/24 (agency only).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 12, Salt Lake City, UT, closes 12/16/24 (non-public).

Gov’t Info. Specialist, Dep’t of Veterans Affairs/VHA, GS 11, Jamaica Plain, MA, closes 12/17/24 (agency only).

Gen. Att’y, Consumer Products Safety Comm’n, GS 11, Bethesda, MD, closes 12/16/24 (public).

Federal positions closing on or after Dec. 20, 2024

Gen. Att’y, Dep’t of Homeland Sec./USCIS, GS 13-15, Camp Springs, MD, closes 12/20/24 (non-public).

Att’y Advisor, Dep’t of Justice/Pardon, GS 13-15, Wash., DC, open until filled (public).

FOIA News: DOJ extends nomination deadline for FOIA awards

Deadline Extended: Nominate FOIA Professionals for the 2025 Sunshine Week FOIA Awards

DOJ/OIP, FOIA Post, Dec. 5, 2024

**Deadline Extended to Friday, December 13, 2024**

The Department of Justice, Office of Information Policy (OIP) is pleased to announce that nominations are open for the 2025 Sunshine Week FOIA Awards, recognizing the contributions of FOIA professionals from around the government.  As the Attorney General recognized in his FOIA Guidelines issued in March 2022, “[t]he federal government could not process the hundreds of thousands of FOIA requests that are received every year without its dedicated FOIA professionals.”  Agency FOIA professionals are at the center of ensuring successful FOIA administration and we look forward to celebrating the work of these individuals from around the government.  For this year’s event, OIP is seeking nominations for five categories of awards:

Read more here.

Court opinions issued Dec. 2, 2024

Berlant v. U.S. Election Assistance Comm’n (D. Or.) -- determining that: (1) agency performed adequate search for various records pertaining to its accreditation of voting system test laboratories (VSTLs); (2) agency properly relied on Exemption 4 to withhold certain records submitted by VSTLs, because those entities customarily kept those records documents private; moreover, the agency provided express and implied assurances to VSTLs that such records would remain confidential; and (3) agency properly invoked Exemption 6 to withhold work phone numbers of two former employees, as well as contact and insurance information of third parties.

Am. First Legal Found. v. DHS (D.D.C.) -- in case involving spreadsheet of enforcement actions taken against certain non-citizens, ruling that: (1) U.S. Immigration and Customs Enforcement properly relied on Exemption 7(C) to withhold names of non-citizens, docket numbers, and full dates of birth, but that it had not justified the blanket withholding of birth months and years, residential addresses by city, state, and country, or gag, cartel, terrorist group affiliations, and monikers; rejecting plaintiff’s threshold argument that non-citizens have no privacy rights under FOIA, noting that plaintiff’s position was unsupported by the statute’s text and case law and would lead to absurd results; and (3) ICE properly invoked Exemption 7(E) to withhold precise addresses where at-large, non-citizens could be located, but it did not justify withholding city, state, and country data; further, ICE properly withheld operational details about its past and future attempts to locate non-citizens under Exemption 7(E), as well as “‘apprehension locations of non-citizens attempting to enter the U.S. illegally”; however, ICE fell short with respect to its Exemption 7(E) withholdings of the names of gang, cartel, and terrorist group affiliations, and monikers.

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