FOIA News: E-discovery tools for FOIA

How Tech-Assisted Review is Transforming FOIA

Government is beginning to adopt AI tools to expedite its obligation of records transparency.

By Katherine MacPhail, Gov’t CIO Mag., Aug. 24, 2022

The Freedom of Information Act (FOIA) process has frequently been plagued with delays, but the massive surge in data production over the past decade means that this problem is only growing. Tackling all of the outstanding FOIA requests manually is not simply burdensome — it is nigh impossible.  

“None of us have time to read a petabyte of data in our lifetime,” said John Facciola, retired U.S. magistrate judge and Georgetown adjunct professor of law, during a Digital Government Institute 930gov panel Tuesday.

That’s where AI comes in. Agencies are turning to technology assisted review tools that were originally developed for the eDiscovery process.

Read more here.

FOIA News: Second Circuit limits scope of Exemption 4

Court Sides with Clinics on Freedom of Information Act Exemptions

By Yale Law Sch., YLS Today, Aug. 24, 2022

In a precedent-setting case, a court agreed with three First Amendment clinics that a Freedom of Information Act (FOIA) exemption for confidential commercial information is not meant to protect confidentiality for the sake of confidentiality.

The Media Freedom & Information Access Clinic (MFIA) at Yale Law School, working with clinics at Cornell Law School and the SMU Dedman School of Law, brought the case.

Seife v. FDA concerns a journalist who requested clinical trial data from the Food and Drug Administration related to its approval of a drug. The FDA held that it could withhold the documents, which the drug maker deemed confidential, under an exemption for privileged business information. Now, an appeals court — the first to consider a standard imposed in 2016 — has ruled that agencies cannot withhold such information under this exemption simply because the information is confidential.  

Read more here.

FOIA News: Using FOIA to Compel Federal Agencies to Prove Claims

Using FOIA to Compel Federal Agencies to Prove Claims

Siri & Glimstad LLP, Bloomberg Law, Aug. 23, 2022

A group of scientists and medical researchers successfully sued the FDA under FOIA to force the release of documents related to licensing of the Pfizer-BioNTech Covid-19 vaccine earlier this year. Siri & Glimstad attorneys, who represent the plaintiffs in the lawsuit, discuss how FOIA can be used to compel government authorities to release data the public can then use to evaluate the veracity of government claims.

Read more here.

FOIA News: OIP updates Exemption 6 of FOIA Guide

On August 19, 2022, the Department of Justice’s Office of Information Policy posted an updated version of Exemption 6 of its Guide to the Freedom of Information Act.

FOIA News: Appointments made to 2022-2024 FOIA Advisory Committee

The National Archives and Records Administration has announced the names of the government and non-government members who will serve on the 2022-2024 term of the Freedom of Information Act Advisory Committee. See the 20-person roster here.

FOIA News: Legal status of the Smithsonian

WHY SENATOR GRASSLEY’S SMITHSONIAN FOIA (Freedom of Information Act) REFORM BILLS FAILED

By Julian Raven, EIN News, Aug. 18, 2022

On the floor of the Senate in 2007, Senator Grassley proclaimed that ‘Many people would naturally think that the Smithsonian is subject to FOIA (the Freedom of Information Act) and must comply with requests. I know that I believed it was, especially given that taxpayer funds make up 70 percent of its budget.” Grassley’s confession is the first step in admitting that there is a glaring problem with the Smithsonian Institution. That problem is a crisis of identity, a confusion as to what the Smithsonian Institution’s entity status is. As a result, a legal dilemma has been left untamed, bewitching even the esteemed Senator Grassley and others.

Read more here.

FOIA News: Contractors notified about FOIA request for EEO-1 data

FOIA request prompts feds to ask: Should contractors’ EEO-1 data be made public?

Affected contractors have until Sept. 19 to object to the release of Type 2 Consolidated EEO-1 reports between 2016 and 2020, OFCCP said.

By Ryan Golden, HRDive, Aug. 18, 2022

Federal contractors that would object to the public release of Type 2 Consolidated EEO-1 reports filed between 2016 and 2020 will have 30 days to submit comments to the Office of Federal Contract Compliance Programs, the agency said in a notice released Thursday.

The agency said the notice, scheduled to be published in The Federal Register on Friday, is in response to a Freedom of Information Act request seeking a spreadsheet of all consolidated Type 2 EEO-1 reports for all federal contractors, including “first-tier subcontractors,” from 2016 to 2020.

Read more here.

FOIA News: State Dep't withholds names of Kerry's staff

John Kerry’s office redacted every staffer name in FOIAed correspondence

Kerry's office has been secretive in its operation

The office of Special Presidential Envoy for Climate John Kerry redacted each of the names and emails of their staffers in emails obtained through a Freedom of Information Act (FOIA) request.

Fox News Digital obtained the documents from government watchdog Protect the Public’s Trust (PPT), which revealed the correspondence between Kerry’s office and several recipients, including nearly 20 climate change groups.

PPT was only able to obtain the documents after suing Kerry’s office over unfulfilled FOIA requests. However, the emails have every staffer’s name and email redacted.

Read more here.

FOIA News: Profile of an information data broker

The Family That Mined the Pentagon’s Data for Profit

The Freedom of Information Act helps Americans learn what the government is up to. The Poseys exploited it—and became unlikely defenders of transparency.

By Mark Harris, Wired, Aug 18, 2022

* * *

In the late 1970s, George Posey must have realized that filing paperwork with bureaucrats was a lot easier, and less costly, than trying to talk his way into underground bunkers. Newport Aeronautical Sales epitomizes what Ohio State University law professor Margaret Kwoka calls “information resellers”—companies that submit a stream of Freedom of Information Act requests to US government agencies, then treat the responses as merchandise to unload. Cheap FOIA requests in, valuable data out. Some resellers focus on the Security and Exchange Commission’s financial filings, others on facility inspection reports from the Food and Drug Administration. The Poseys specialized in engineering drawings, technical orders, and manuals for aircraft, most of them from the military.

Read more here.

FOIA News: ICYMI, reimagining OGIS?

Does the government need a FOIA enforcer?

By Justin Doubleday, WFED, Aug. 10, 2022

A federal advisory committee is recommending Congress give a small office at the National Archives and Records Administration the ability to issue binding decisions over Freedom of Information Act request disputes.

Proponents of the recommendation say it will help improve FOIA at a time when public records requests backlogs and denials are on the rise. But the idea also faces pushback, including from the office’s director

Read more here.

[Note: Mr. Blutstein voted on this matter as a member of the FOIA Advisory Commitee]