FOIA Advisor

FOIA News: OGIS Advises Agencies on How to Avoid FOIA Lawsuits

FOIA News (2018)Ryan MulveyComment

Tips for Avoiding FOIA Lawsuits

Nat'l Archives & Records Admin., The FOIA Ombudsman, Mar. 21, 2018

Last week our mediation team facilitator, Christa Lemelin, gave a five minute lightning talk at the Department of Commerce Sunshine Week celebration about common mistakes agencies make that could increase the likelihood of a FOIA requester filing a lawsuit against the agency. Here is a brief summary of the three mistakes she shared with the audience, and tips for how to avoid them . . . 

Read more here.

FOIA News: Special Counsel has not received FOIA-related referral for at least 10 years

FOIA News (2018)Allan BlutsteinComment

FOIA-Related Lawsuits Not Triggering Discipline, Says GAO

FedWEEK, Mar. 21, 2018

The Freedom of Information Act allows requesters to sue an agency in federal court if they are dissatisfied with the agency’s responsiveness but such suits are not resulting in referrals to the Office of Special Counsel to initiate disciplinary actions against the federal employees involved, GAO has found.

The FOIA law allows suits if the agency does not respond to a request for information within the statutory time frames or if the requesters believe they are entitled to information that is being withheld by the agency. In certain circumstances the court must make a referral to the OSC, which then may recommend discipline that the employing agency would have to carry out.

Read more here.

Court opinions issued Mar. 19, 2018

Court Opinions (2018)Allan BlutsteinComment

Leopold v. DOJ (D.D.C.) -- ruling that: (1) FBI conducted reasonable search for investigative records pertaining to Donald Trump's statement about Russia looking for Hillary Clinton's missing emails; (2) FBI properly withheld all responsive records concerning item 1 above pursuant to Exemption 7(A); (3) FBI properly invoked Exemption 7(A) in refusing to confirm or deny existence of investigative records concerning Donald Trump statement about "Second Amendment people" stopping Hillary Clinton; (4) Secret Service properly relied on Exemptions 5 and 7(E) to withhold records concerning plaintiff's requests.  

Dutton v. DOJ (D.D.C.) -- determining that FBI and DOJ Inspector General conducted adequate searches for records pertaining to plaintiff, and that government properly withheld records pursuant to Exemptions 1, 3, 5, 6, 7(A), 7(C), 7(D), and 7(E).

Summaries of all opinions issued since April 2015 available here

FOIA News: McCabe texts sought in FOIA lawsuit

FOIA News (2018)Allan BlutsteinComment

Judicial Watch Fights Uphill Battle for McCabe Texts

FBI has refused to hand over FOIA-requested documents

By Susan Crabtree, Wash. Free Beacon, Mar. 20, 2018

Even though FBI Deputy Director Andrew McCabe was fired last Friday, it is an open question as to whether the FBI will release text messages he exchanged on government-issued or personal phones or try to shield them from public scrutiny.

Judicial Watch, a conservative watchdog organization, has spent months pursuing a Freedom of Information Act lawsuit demanding the release of texts McCabe exchanged with colleagues.

Read more here.

FOIA News: DOJ's Sunshine Week Awards

FOIA News (2018)Ryan MulveyComment

DOJ Kicked-off Sunshine Week 2018 with Annual FOIA Awards

Dep't of Justice, Office of Info. Pol'y Blog, Mar. 19, 2018

Last week, the Justice Department welcomed individuals from around the government and members of the public to the Great Hall of the Robert F. Kennedy building to kickoff Sunshine Week 2018. This year’s event included the presentation of the 2018 Sunshine Week FOIA Awards and keynote remarks from OIP Director Melanie Ann Pustay.

The event began with a welcome from Acting Associate Attorney General Jesse Panuccio, who also serves as the Department’s Chief FOIA Officer. The Acting Associate Attorney General noted, “Sunshine Week serves as an opportunity for us to recognize the importance of transparency in government and the many contributions of civil servants dedicated to that goal.”  The Acting Associate Attorney General thanked FOIA professionals from across the government for their tireless efforts to implement the law and for “helping secure liberty through accountable government.”

Read more (including list of award recipients) here.

FOIA News: House Oversight approves bill that would expand OGIS's access to FOIA records

FOIA News (2018)Allan BlutsteinComment

Oversight panel advances records preservation, transparency bills

By Chase Gunter, FCW, Mar 19, 2018

The House Oversight and Government Reform Committee approved a slate of bills aimed at preserving electronic records, improving customer experience and posting more information online.

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Another Farenthold bill approved by the committee would make sure agencies make available records covered by the Freedom of Information Act to NARA's Office of Government Information Services upon request. OGIS is the Justice Department entity that generates governmentwide FOIA policy.

Read more here.

Court opinions issued Mar. 15-16, 2018

Court Opinions (2018)Allan BlutsteinComment

Mar. 16, 2018

Davis v. U.S. Dep't of Veterans Affairs (10th Cir.) -- affirming district court's decision that agency performed  reasonable search for records pertaining to plaintiff's claims for benefits and that agency did not withhold any responsive records. 

Mar. 15, 2018

Lopez v. NARA (D.D.C.) -- dismissing case because plaintiff failed to administratively appeal agency's decision before he filed lawsuit.  

Chase v. DOJ (D.D.C.) -- ruling that:  (1) Executive Office for United States Attorneys performed reasonable search for records concerning plaintiff's prosecution for possession of child pornography; (2) EOUSA properly relied on Exemption 3, in conjunction with Federal Rule of Criminal Procedure 6(e) and the Child Witnesses' Rights Act,  to withhold grand jury transcripts; (3) U.S. Marshals Service properly withheld records pursuant to Exemptions 7(C) and 7(E); and (4) EOUSA properly referred certain records to FBI, which properly determined that plaintiff was not entitled to waiver of duplication fees.  

Summaries of all opinions issued since April 2015 available here

Q&A: Odds and ends

Q&A (2018)Allan BlutsteinComment

Q.  Why must tax-paying U.S. citizens wait for a FOIA request, which according to FOIA takes 3-6 months minimum, while non-tax-paying visitors to the U.S. have the option of an online I-94 form request that provides immediate access to records?

A.  The online form to which you refer was launched by the U.S. Customs and Border Patrol in 2014 and permits travelers to retrieve their I-94 arrival/departure record number and five-year travel history.  The I-94 system was automated in order to increase efficiency and streamline the admission process for the traveling public.  It appears as if holders of U.S. passports also are able retrieve their traveling histories.   

Q.  I sent a FOIL request to the New York County DA’s office and they said  that it would take three weeks.  That time has come and gone and I cannot get a definitive time frame for a response.  What can I do?

A.   If you believe the District Attorney's response to your FOIL request has been unreasonably delayed, you might consider submitting an administrative appeal to that office or asking for a written advisory opinion from the New York Department of State's Committee on Open Government.  The Committee has addressed the issue of delays in several advisory opinions.  See, e.g.,  If you ultimately wish to litigate the matter, I can only suggest that you confer with an attorney in New York.