FOIA News: Research paper studies Exemption 1

A forthcoming article in the Harvard National Security Journal explores whether courts rubberstamp the federal government’s Exemption 1 claims. An abstract of the article, entitled Defense and Deference: Empirically Assessing Judicial Review of Freedom of Information Act’s National Security Exemption, has been posted here.

FOIA News: OGIS is open for business

The Office of Government Information Services announced today that all of its employees are teleworking, and therefore its responses to U.S. mail, overnight mail services, or faxes will be delayed. For fastest responses, OGIS encourages communications by email.

FOIA News: Graduate School USA cancels in-person classes though May 1

Graduate School USA, an independent, nonprofit educational institution based in Washington, DC, has will not hold any in-person classes — including the FOIA and Privacy Act course scheduled to be taught in April by OIP cofounder Richard Huff — through at least May 1, 2020. It is unclear whether the upcoming FOIA/PA course will be presented online; it will next be offered in Atlanta on May 19 and again in D.C. on June 1.

FOIA News: COVID-19 vs. FOIA: The virus is winning

COVID-19 vs. FOIA: The virus is winning

By Mike Soraghan and Jennifer Yachnin, E&E News, Mar. 18, 2020

The coronavirus may be starting to disrupt the release of government information, in addition to everyday life.

FBI officials have told attorneys for Freedom of Information Act requesters that the agency's Records Management Division is closed until at least the end of March, BuzzFeed News reported yesterday. And the agency is no longer accepting FOIA requests electronically. Instead, they must be mailed.

In Washington, WUSA reported that the D.C. Council approved emergency legislation that, among many other items, extends deadlines for FOIA requests.

Read more here.

FOIA News: MuckRock offers free FOIA training on Mar. 19

MuckRock is offering a free “FOIA 101 training” on Thursday March 19. The training is online and free, but RSVPs are required. See details here.

FOIA News: ASBL recovers $500,000 in FOIA win

American Small Business League beats DoD and Lockheed in Federal Court and recovers $500,000; Pentagon Fails at Attempt to Withhold Key Pentagon and Lockheed Documents

Business Wire, Mar. 18, 2020

The United States government has paid $500,000 in compensation to the American Small Business League (ASBL), which prevailed in part on a multi-year court battle to force the Department of Defense to disclose documents showing whether big defense contractors like Lockheed Martin complied with laws requiring them to subcontract to small business. Read more here.

FOIA News: More on FBI's suspension of FOIA portal

Axios reports that an unnamed government attorney stated that the FBI must “drastically reduce its FOIA processing because it cannot do the work remotely, due to the system’s security constraints.” According to the attorney, “FOIA processors need to be on-site to do the work, but they are too closely positioned to be able to conform to the new social distancing guidance.” See full article here.

FOIA News: OGIS to assess online reading rooms

The Office of Government Information Services announced today that it will conduct an assessment of online FOIA reading rooms pursuant to a recommendation of the FOIA Advisory Committee. See more details here.

FOIA News: FBI suspends use of FOIA portal due to virus

The FBI will not accept requests or send responses through its “eFOIPA” portal due to the Coronauvirus pandemic, according to an announcement on the agency’s web page. Requests will be accepted only via standard mail.

The FBI’a announcement did not explain how it would be safer or more efficient to rely on standard mail instead of an electronic system, nor can the author of this post imagine how it could.

FOIA News: TRAC and American Oversight Pen Replies to DOJ's Claire Murray

Department of Justice Official Uses Sunshine Week Event to Spread Misinformation about FOIA Processing

TRAC, Mar. 17, 2020

At a recent Sunshine Week event, a Department of Justice spokesperson claimed that FOIA applicants are now quicker to litigate, then blamed overly-litigious requesters for straining the workloads of FOIA professionals and bogging down ordinary citizens' FOIA requests.

TRAC finds the underlying claim to be unsubstantiated and counterfactual. TRAC's recent empirical study found that not only were requesters not jumping into court immediately, requesters were actually waiting on average six months-a full month longer than they had five years ago-before filing a FOIA lawsuit. Additionally, TRAC found that the increase in FOIA lawsuits was due to FOIA officials' failure to respond to requests in a timely manner as required by law.

Read more here.

THE INCREASE IN FOIA LAWSUITS ISN’T THE PROBLEM — IT’S AGENCIES UNDERFUNDING THEIR TRANSPARENCY OBLIGATIONS

American Oversight, Mar. 17, 2020

Sunshine Week celebrates the success FOIA has had in providing the public with insight into the operations of the federal government. But the ability of the law to serve this important function is facing increasing challenges as requests are met by long agency backlogs and delays in processing. FOIA cannot serve its intended functions if agencies are permitted to set a timetable that avoids access to agency records when they are salient to current public debates. Thus it is disappointing to hear the Department of Justice’s chief FOIA officer, acting Associate Attorney General Claire Murray, opening the department’s Sunshine Week festivities by complaining that requesters are “filing suit as soon as they can” when agencies fail to meet their legal obligations under FOIA. 

…

Unfortunately, many agencies across the executive branch have failed to meet their obligation to make timely determinations on FOIA requests. As a result, they have developed significant FOIA backlogs, and FOIA requesters face increasing delays in receiving the documents to which they are entitled. It is not unusual for FOIA requesters to be told that the search for records responsive to their FOIA will not even be initiated until more than a year after the request was submitted, and several agencies recently have been giving requesters estimated dates for the completion of their requests that are several years in the future. 

Read more here.