FOIA Advisor

FOIA News: OGIS Attorney Shares FOIA Best Practices

FOIA News (2018)Ryan MulveyComment

OGIS Shares FOIA Tips at IRE Conference

Nat'l Archives & Records Admin., FOIA Ombudsman, June 20, 2018

Last week our Attorney Advisor, Sheela Portonovo, attended the 2018 Investigative Reporters and Editors (IRE) Conference to share best practices for successfully navigating the FOIA process. Below is a brief summary of the major issues with the FOIA process we regularly hear about from reporters (and others), and some of the tips she shared.

Read more here.

FOIA News: GSA proposes revisions to its FOIA regulations

FOIA News (2018)Ryan MulveyComment

The General Services Administration ("GSA") published a proposed rule to amend its FOIA regulations in today's issue of the Federal Register.  Among other things, the changes are intended to incorporate changes made by the FOIA Improvement Act of 2016, as well as to update the regulations in light of recent case law and DOJ-OIP's recommended practices.  Public comments are due on or before August 20, 2018.

FOIA News: State Department says it needs 45 years to process FOIA request

FOIA News (2018)Ryan MulveyComment

State Department Says It Will Take 45 Years to Fulfill FOIA Request

Katie Zehnder, Townhall, June 18, 2018

According to a joint status report from the United States District Court for the District of Columbia, the State Department has informed Citizens United that they need 45 years to fulfill a FOIA request. 

The plaintiff, Citizens United, submitted a FOIA (Freedom of Information Act) request seeking: “All emails sent and received by former Assistant Secretary of State for European and Eurasian Affairs Victoria Nuland (from March 1, 2016 through January 25, 2017).”

The parties have reached some level of agreement concerning narrowing the scope of the request.  “State has informed Plaintiff that its search has uncovered approximately 104,629 potentially responsive documents.” 

Citizens United has agreed concerning terms narrowing the search, that the search can exclude "universe e-mails" as well as attachments which hit on "five key words." However, this agreement of terms has only narrowed the search to 9,000 documents. 

Read more here.

FOIA News: ICYMI, OIP releases summary of annual reports

FOIA News (2018)Allan BlutsteinComment

FOIA Backlog Trimmed Even as Requests Set Record

By FedWeek, June 18, 2018

Federal agencies received a record 818,271 requests under the Freedom of Information Act in fiscal 2017, the Justice Department has reported, but agencies still managed to reduce the backlog to just over 111,300 by processing 823,222.

The total number of requests has risen steadily from just under 600,000 in fiscal 2010, and DHS continues to account for by far the largest share, 45 percent. Justice, Defense and the National Archives and Records Administration accounted for 10, 7 and 7 percent.

Read more here.

Court opinions issued June 13-14, 2018

Court Opinions (2018)Allan BlutsteinComment

June 14, 2018

Janangelo v. Treasury Inspector Gen. for Tax Admin. (9th Cir.) (unpublished) -- affirming district court's decision that agency properly issued Exemption 6 Glomar response to request concerning third party's alleged misconduct, and that agency had not officially acknowledged existence of records.  

Coffey v. Bureau of Land Mgmt. (D.D.C) -- awarding plaintiff attorney's fees in case concerning agency's Wild Horse and Burro Program, but reducing amount sought from $125,541 to $69,019 primarily because plaintiff spent excessive time on various pleadings. 

Rhodes v. FBI (D.D.C.) -- ruling that FBI properly relied on Exemption 7(E) in refusing to confirm or deny the existence of records indicating whether plaintiff's name appears on any agency watch lists.

June 13, 2018

100Reporters v. DOJ (D.D.C.) -- concluding that DOH overbraodly applied Exemptions 4, 5, 6, and 7(C) in withholding certain records generated by company's independence compliance monitor.  

Summaries of all published opinions issued since April 2015 available here

 

FOIA News: Postal Service proposes FOIA reg changes

FOIA News (2018)Allan BlutsteinComment

The U.S. Postal Service has issued a proposed rule appearing in today's Federal Register that would amend the agency's Freedom of Information Act regulations.  The revisions "would improve clarity, make technical corrections, and create a definition of '`information of a commercial nature'  as it pertains to the Postal Reorganization Act's provisions."  Comments must be received on or before July 16, 2018.

FOIA News: OGIS Explains the role of NARA's Federal Records Centers in FOIA

FOIA News (2018)Ryan MulveyComment

FOIA and NARA's Federal Records Centers

Nat'l Archives & Records Admin., FOIA Ombudsman, June 13, 2018

We sometimes hear from FOIA requesters and agency personnel who are confused about why a FOIA request for records at the National Archives and Records Administration (NARA) is not processed by NARA. The answer has to do with whether the federal agency or NARA has legal custody of the records, and requires a brief explanation.

NARA only takes legal custody of records that have been determined to be of permanent historical value. The term of art used by records management staff for the transfer of permanent records to NARA is “accessioning.” “Accession” is the process of transferring legal – and in most cases physical – custody of permanent records from federal agencies to NARA. See 36 C.F.R. § 1235.  While the terms “transfer” and “accession” are often used interchangeably, there is an important distinction. “Transfer” refers to moving records into the physical custody of a NARA Federal Records Center (FRC). The transferring agency, however, retains legal custody of the transferred records until final disposition.

Read the original post here.

Court opinion issued June 12, 2018

Court Opinions (2018)Allan BlutsteinComment

Cause of Action Inst. v. IRS (D.D.C.) -- concluding that agency performed reasonable search for communications with White House regarding third-party document requests; notably approving IRS's decision not to search email accounts of Office of Disclosure employees because its highest ranking official attested that he was unaware of any relevant IRS-White House consultations.

[Note:  I was counsel on this case for Cause of Action Inst. during its earlier stages]

Summaries of all published opinions issued since April 2015 available here

FOIA News: NPR Discussion on Freedom of Information

FOIA News (2018)Kevin SchmidtComment

The Freedom Of Information And Our Government

By David Folkenflik, NPR, June 13, 2018

The flow of information to the public in the Age of Trump. What do we know about what the government is doing in our name and with our tax dollars?

Guests

Solomon Lartey, worked for over 29 years as a records management analyst at the White House’s Office of Records Management.

Dr. Gretchen Goldman, Research Director, Center for Science & Democracy at the Union of Concerned Scientists. (@GretchenTG)

Anne Weismann, Chief Counsel for Freedom of Information Act matters at the non-profit Citizens for Responsibility and Ethics in Washington.

Alex Howard, writer and open government advocate. Former Deputy Director at the Sunlight Foundation. (@digiphile)

Read and listen here.

FOIA News: DHS Hit With FOIA Suit Over Asylum Practices At Border

FOIA News (2018)Kevin SchmidtComment

DHS Hit With FOIA Suit Over Asylum Practices At Border

By Suzanne Monyak, Law360, June 13, 2018

An immigration advocacy group accused the U.S. Department of Homeland Security in D.C. federal court Tuesday of violating the Freedom of Information Act by withholding documents related to how border patrol agents process asylum requests.

The nonprofit American Immigration Council's complaint asks the court to force the DHS and U.S. Customs and Border Protection to hand over documents on their practices and policies when dealing with noncitizens who ask Border Patrol agents for asylum or express a fear of persecution in their home countries.
 

Read more here (subscription).