FOIA News: FERC and Int'l Trade Comm'm revise FOIA regs without public comment

The Federal Energy Regulatory Commission and the International Trade Commission issued final rules today that revise their FOIA regulations effective January 3, 2017.   Neither agency solicited public comments before updating their regulations.  

Q&A: Burning down the house

Q.   Is the Federal National Mortgage Association (Fannie Mae) subject to FOIA regulations? Is Fannie Mae required to produce documents in response to a FOIA request?

A.  Fannie Mae is a private entity under the conservatorship of the Federal Housing Finance Agency.  This means that Fannie Mae need not respond to FOIA requests submitted directly to it, but its records might be subject to FOIA requests submitted to FHFA.  The U.S. Court of Appeals for the District of Columbia Circuit has held that Fannie Mae records are not subject to FOIA if FHFA has neither read or relied upon them, nor integrated them into its files. See Judicial Watch, Inc. v. Fed. Housing Fin. Agency, No. 10-5349, 2011 WL 3375576 (D.C. Cir. Aug. 5, 2011). 

FOIA News: Judge rules that food stamp sales figures are public

Judge rules that food stamp sales figures are public

By Jonathan Ellis, Argus Leader, Nov. 30, 2016

A federal judge has ruled that the Obama administration must disclose the annual sales amounts that retailers in the federal food stamp program earn each year.

District Judge Karen Schreier ruled that disclosure of annual sales amounts that retailers earn by participating in the Supplemental Nutrition Assistance Program would not cause competitive harm to the hundreds of thousands of grocers, convenience stores, big-box retailers and others that participate in the $74 billion program.

Schreier’s ruling was in response to a lawsuit filed by Argus Leader Media against the United States Department of Agriculture, which administers the SNAP program. In 2011, the paper filed a request under the Freedom of Information Act for the annual sales amounts of every business in the nation that participates in SNAP. USDA refused to release the data, and the paper filed suit in 2011.

Read more here.

FOIA News: OSHRC proposes revisions to FOIA regs

The Occupational Safety and Health Review Commission (“OSHRC”) is proposing revisions to its FOIA regulations, according to a notice published today in the Federal Register.  The proposed revisions reflect statutory amendments set forth in the FOIA Improvement Act of 2016, changes to existing procedures, and updates to contact information.

The deadline to submit comments is December 20, 2016.

FOIA News: FOIA Machine joins MuckRock

FOIA Machine joins MuckRock to make government more open for everyone

By Michael Morisy, MuckRock, Nov. 29, 2016

With fake news seemingly everywhere and government secrecy becoming the norm, public records are more important than ever. To help, I’m pleased to share that FOIA Machine is joining MuckRock. The two sites will continue to operate independently to offer easy, accessible tools to help reporters, researchers, and the general public file, track, and share their public records requests.

Since its successful Kickstarter in 2013, FOIA Machine has helped journalists around the country write and manage their public records requests. It’s been used for projects large and small, and it helped galvanize the interest of thousands of users.

Now, that same community will have access to a rebuilt FOIA Machine that follows the same principles, but also taps into MuckRock’s rich database of agencies, jurisdictions, and exemptions.

In fact, the two sites will now share the same codebase, as MuckRock goes open source. As improvements are made to one tool they will more easily be developed for the other.

Read more here.

FOIA News: D.C. Circuit to hear "reading room" case next week

Oral Argument Preview: CREW v. DOJ

By David Ryan, Lawfare,  Nov. 28, 2016

On December 5, the D.C. Circuit will hear oral argument in Citizens for Responsibility and Ethics in Washington v. U.S. Department of Justice. The case presents an important question concerning the Freedom of Information Act: whether the Act’s “reading room” provision requires DOJ to prospectively disclose controlling legal opinions issued by the Office of Legal Counsel (OLC), without first receiving a request for specific documents.

The Office of Legal Counsel is the DOJ component responsible for providing authoritative legal advice to the White House and executive branch agencies. As explained in the Office’s 2010 Best Practices Memorandum, OLC frequently resolves novel legal questions that are important to the functioning of the government but unlikely to reach the federal courts in a justiciable controversy. This means that in many cases, OLC’s legal opinions are “effectively [the] final word on the controlling law” within the executive branch. Despite their importance, many OLC opinions are never released to the public, typically because they contain confidential legal advice or other sensitive government information.

Read more here.

FOIA News: FSOC to revise FOIA regs

The Financial Stability Oversight Council has proposed to revise its FOIA regulations, according to a notice scheduled to be published in the Federal Register on November 28, 2016.  The changes will implement the FOIA Improvement Act of 2016.  

The deadline to submit comments is January 27, 2017.  

Court opinions issued Nov. 23, 2016

Levinthal v. Fed. Election Comm'n (D.D.C.) -- concluding that the agency properly withheld a vulnerability assessment of its information technology systems pursuant to Exemptions 5 and 7(E).   

Sklarski v. Niagara Falls Bridge Comm'n (W.D.N.Y.) -- holding that the Commission is not subject to FOIA because its employees are not federal employees, it receives no federal funds, and the federal government does not recommend or appoint Commissioners.

Summaries of all opinions issued since April 2015 available here.

FOIA News: ICYMI, new OGIS director appointed by National Archives

Alina M. Semo Appointed Director of the Office of Government Information Services

NARA Press Release, November 23, 2016

Archivist of the United States David S. Ferriero today announced the appointment of Alina Semo as the new Director of the National Archives Office of Government Information Services (OGIS). OGIS, an organization established under the OPEN Government Act of 2007, provides policy guidance and mediation services for Freedom of Information Act (FOIA) activities government-wide.

Ms. Semo has served as Director of Litigation in the Office of General Counsel since joining the National Archives in March 2014, and has worked closely with the FOIA team and other National Archives offices to respond to FOIA requests and appeals.  She has provided frequent legal advice to ensure consistent agency responses, and helped rewrite the National Archives’ FOIA regulations. She also provided legal guidance and support to OGIS on administrative and mediation processes, and on issues involving the FOIA Advisory Committee.

Read more here.

Court opinions issued Nov. 22, 2016

Friends of the River v. U.S. Army Corps of Eng'rs (N.D. Cal.) --  transferring case to District of Columbia because plaintiff failed to establish that responsive records were likely located in the Northern District of California.   

Wadhwa v. Sec'y, Dep't of Veterans Affairs (D.N.J.) -- granting plaintiff's motion to compel discovery because the agency ignored instructions to submit affidavit explaining its Glomar response or its withholding under Exemptions 5 and 6. 

Summaries of all opinions issued since April 2015 available here.