FOIA News: HUD finalizes new FOIA regulations

The Department of Housing and Urban Development published a final rule implementing new FOIA regulations in today's issue of the Federal Register.  The changes introduced by the agency are required to bring its regulations into compliance with the FOIA Improvement Act of 2016.  Further, the rule revises HUD's regulations "to more accurately reflect statutory language."  HUD did not solicit public comments prior to issuance of the final rule, which is effective February 13, 2017.

FOIA News: "FOIA Ombudsman" Interviews New OGIS Director

The National Archives and Record Administration's FOIA Ombudsman blog has posted a Q&A with Alina M. Semo, the new director of the Office of Government Information Services ("OGIS").  OGIS was created by Congress with the passage of the OPEN Government Act of 2007.  The agency is charged with reviewing FOIA activities government-wide and serving as a mediator in disputes between requesters and agencies.  Read the interview here.

FOIA News: OIP Issues New Guidance on the Definition of a "Record"

OIP Issues New Guidance on the Definition of a Record and the Processing of Records Responsive to a Request

Dep't of Justice, Office of Information Policy, Jan. 11, 2017

One of the first questions that an agency must answer as it begins to process a FOIA request is: “What exactly is the requester seeking?” The answer to that question will determine the scope of the agency’s search for responsive records and that in turn will create the universe of records that needs to be processed for release. Sometimes a requester seeks information on a particular topic and in the course of conducting their search for records on that topic, the agency may locate documents that discuss a number of different subjects, only some of which relate to the topic of the FOIA request. If only a portion of a document concerned the topic of a request, a common practice has been for an agency to process only the responsive portion and redact the other portions as “non-responsive” or “outside the scope” of the request. Given that the processing of FOIA requests can be very labor-intensive and time-consuming, it is in both the requesters’ interests and the agencies’ that time and resources not be expended unnecessarily by reviewing material that was not requested. While many district courts had approved the practice of agencies redacting “non-responsive” material from records processed for release under the FOIA, in July 2016, the issue was addressed by the Court of Appeals for the District of Columbia Circuit in American Immigration Lawyers Association v. EOIR, 830 F.3d 667 (D.C. Cir. 2016).

OIP’s guidance summarizes the Court of Appeals for the District of Columbia’s holding that the FOIA “does not provide for . . . redacting non-exempt information within responsive records.” As declared by the court, “once an agency identifies a record it deems responsive to a FOIA request, the statue compels disclosure of the responsive record—i.e., as a unit—except insofar as the agency may redact information falling within a statutory exemption.” As a result of the ruling in AILA, it will be important for agencies to carefully define what they consider to be the “records” responsive to any given FOIA request. In addition to some practical considerations, OIP’s guidance provides principles for agencies to follow when determining what constitutes a “record” responsive to a FOIA request.

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DOJ's original press release is available here.

Q&A: Of Mice and Exterminators

Q.  I recently sent an e-mail to an agency to request a Material Safety Data Sheet (MSDS) related to an extermination problem and a planned clean-up.  Is the right to request an MSDS the same as the right to request records under the FOIA, or do I need a special form?

A.  No, the right to request a Safety Data Sheet (SDS) is not the same as the right to access agency records under the FOIA.  The Occupational Safety & Health Administration (OSHA) and the Environmental Protection Agency (EPA) regulate the “right to know” about hazardous chemicals.  Under OSHA rules, manufacturers of hazardous materials are required to provide SDSs for their products to downstream commercial vendors and distributors.  These entities must then provide the SDSs to their employees.  Generally speaking, any employer (including a federal agency) would be required to provide its employees with "ready access" to SDSs in the workplace.  There is no standardized form to request a SDS.  You can read OSHA’s Hazard Communication Standard, 29 C.F.R. sec. 1910.1200, online.  The agency has also published a brief on the topic.

If you are not an employee of the agency in question, or if you want a SDS for a hazardous material that is being used by a private enterprise, you probably do not have a right of "ready access," let alone a right to immediate access "upon request."  The agency may still respond to your e-mail, but you could also file a FOIA request.  So long as the agency has a copy of the SDS, you should eventually receive it.  Alternatively, you may consider requesting the SDS directly from the manufacturer, though it is not required to respond to you.

FOIA News: USPS reissues final rule for new FOIA regulations

The United States Postal Service reissued its final rule implementing new FOIA regulations in today's issue of the Federal Register.  In response to public comments, the Postal Service has modified its definition of a "representative of the news media" by removing an "organized and operated" standard.  The final rule is effective immediately.

FOIA News: FLRA issues new FOIA regulations

The Federal Labor Relations Authority published a final rule implementing new FOIA regulations in today's issue of the Federal Register.  The amendments are required to comply with the FOIA Improvement Act of 2016 and are also intended to clarify and update the agency's FOIA procedures.  The agency did not solicit public comments on the changes.  The final rule is effecitve January 24, 2017.

FOIA News: News Reporters Drive Growth in Media FOIA Litigation

News Reporters Drive Growth in Media FOIA Litigation

By FOIA Project Staff, The FOIA Project, Jan. 9, 2017

Whether measured in sheer numbers or as a proportion of all Freedom of Information Act suits filed in federal district courts, the number of FOIA cases brought by reporters and news organization has substantially increased during the last four years.

This recent trend is exactly the opposite of what many commentators have suggested is now occurring. As the FOIA Project previously noted, the growing financial pressures that the industry has been experiencing was thought to make marshaling resources needed to mount such suits more difficult, while others also believed that the media as a whole has simply become less willing to haul federal bureaucrats to court.

Read more here.

FOIA News: EFF accepting nominations for worst agency responses

Now Accepting Nominations for The Foilies 2017

Third Annual “Awards” Recognize the Worst in Government Transparency

By David Maass, Electronic Frontier Foundation, Jan. 9, 2017

Government transparency shouldn’t be a battle, but too often when the public wants to see what their officials are up to they’re met with resistance, hostility, obfuscation, and even retaliation.

For the third year in a row, the Electronic Frontier Foundation is soliciting submissions for “The Foilies,” our tongue-in-cheek awards for government officials who stand in the way of your right to review what they’re up to.

EFF will announce the awards during Sunshine Week, March 12-18, 2017.  In the meantime, we need your nominations.

Read more here.

Q&A: If you want to sing out, sing out.

Q.  The Department of Defense provided me with redacted documents in response to my FOIA request for a a Hotline Completion Report.  My question is whether I may now legally share the information with entities outside of the federal government, including public interest groups and the media. 

A.  Yes, you may do whatever you wish with records received via FOIA; there are no restrictions.  

Court opinions issued Jan. 6, 2017

Am. Small Bus. League v. DOD (9th Cir.) -- in an unpublished opinion, reversing district court's decision that none of agency's redactions from company's subcontracting plan were protected under Exemption 4 and that company's business contact information and signatures were not protected by Exemption 6.

Schwartz v. DOD (E.D.N.Y.) -- concluding that: (1) CIA, Office of the Director of National Intelligence, and Department of Defense failed to adequately search for certain records concerning military commissions at Guantanamo Bay; (2) Exemption 7(F) did not apply to DOD's annual security refresher training presentation; (3) CIA properly redacted four of five items pursuant to Exemption 3; and (4) CIA properly refused to confirm or deny existence of certain records pursuant to Exemption 3.  

Summaries of all opinions issued since April 2015 available here.