FOIA News: NEA proposes new FOIA regulations

The National Endowment for the Arts published a notice of proposed rulemaking for new FOIA regulations in today's issue of the Federal Register.  These amendments are intended to implement changes required by the FOIA Improvement Act of 2016, as well as other updates.  Comments are due on or before July 10, 2017.

Court opinions issued June 5, 2017

Guidry v. Comey (11th Cir.) -- affirming district court's decision that FBI was not required to perform a "manual keyboard search" because it would have resulted in creation of new records rather than retrieval of existing records.

Canning v. DOJ (D.D.C.) -- ruling that: (1) FBI performed an adequate search for requested records concerning third parties; and (2) agency properly withheld records pursuant to Exemption 1, 3, 6, 7(C), 7(D), and 7(E), except with respect to certain information that FBI previously released to public.

Summaries of all opinions issued since April 2015 available here.

FOIA News: Update on OGIS's Dispute Resolution Program

An Update on Our Dispute Resolution Program

Nat'l Archives & Records Admin., The FOIA Ombudsman, June 7, 2017

We’ve written before about the profound impact the FOIA Improvement Act of 2016 has had on our workload, and that impact has only continued to grow.  Demand for our services has roughly quadrupled since the passage of the bill, while at the same time there are two open positions on the mediation team that we have been unable to fill. So how is our small staff approaching this big task, and what can our customers do to receive a response more quickly?

Read more here.

Court opinion issued June 2, 2017

White Arnold & Dowd P.C. v. Dep't of Justice (N.D. Ala.) -- finding that DOJ's Office of Professional Responsibility properly relied on Exemptions 6 and 7(C) in refusing to confirm or deny the existence of any complaints against an Assistant U.S. Attorney.

Summaries of all opinions issued since April 2015 available here.

FOIA News: "Fight It with FOIA"

Fight It with FOIA: How Congress Can Respond to White House Attempts to Block Congressional Oversight

Andy Wright & Justin Florence, Just Security, June 5, 2017

The Trump White House took another step last week to weaken the checks and balances at the center of our constitutional system.  According to Politico, President Donald Trump’s “White House is telling federal agencies to blow off Democratic lawmakers’ oversight requests.”  As Politico reported, “a White House lawyer told agencies not to cooperate with such requests from Democrats, according to Republican sources inside and outside the administration.”

Politico’s reporting was reinforced by the release of a memorandum from the Trump Justice Department’s Office of Legal Counsel to the White House Counsel entitled “Authority of Individual Members of Congress to Conduct Oversight of the Executive Branch.”  That memorandum states that “Individual members of Congress, including ranking minority members, do not have the authority to conduct oversight in the absence of a specific delegation by a full house, committee, or subcommittee.”

This is a brazen statement and one for which the OLC memo lacks support. 

Read more here.

Q&A: Where art thou, FOIA lawyer?

Q.   I know you cannot recommend anyone particular law firm or attorney but can you direct me as to what kind of practicing attorney to look for?  I'm completely clueless on where to start.

A.  FOIA attorneys often work as solo practitioners or at public interest organizations or small law firms.  Public interest groups are more likely to accept cases that implicate broad issues, as opposed to ones vindicating only the personal interests of the requester.  Many of the more experienced FOIA attorneys practice in the D.C. area, given the volume of litigation there.  You might want to browse the database of FOIA lawsuits on FOIA Project to get a sense of which attorneys are handling cases like yours.

Court opinions issued May 31, 2017

Kuzma v. DOJ (2nd Cir.) (summary order) -- affirming district court's decision that FBI conducted adequate search for records concerning civil rights activist Ray Robinson and properly withheld certain records pursuant to Exemption 3, 6, 7(A), 7(C), and 7(D).

Animal Legal Defense Fund v. USDA (N.D. Cal.) -- denying plaintiffs' request for preliminary injunction compelling USDA to restore public access to documents removed from online reading room.  In reaching its decision, the Court concluded that FOIA does not provide a public remedy for reading-room violations and that plaintiffs did not exhaust administrative remedies.  The Court further concluded that Administrative Procedure Act claim was unlikely to succeed and that plaintiffs failed to demonstrate that they are likely to suffer irreparable harm or that the balance of harms weighs in their favor.

Summaries of all opinions issued since April 2015 available here.

FOIA News: Dep't of Transportation corrects Exemption 5 error in FOIA regs

The U.S. Department of Transportation has re-amended its FOIA regulations after learning that they misstated the scope of the deliberative process privilege.  In 2016, Congress prohibited agencies from relying on the privilege to withhold records that are 25 years old or older.  But DOT's regulations issued on May 5, 2017 reversed this statutory sunset provision, stating that the privilege "only applies to records created 25 years or more before the date on which the records are requested."  DOT's technical correction will appear in the June 5th edition of the Federal Register and is effective immediately.  

FOIA News: USDA removing animal welfare records from agency website

Blackout blackout: The latest in the USDA's ongoing attempts to stymie transparency

Delcianna J. Winders, Salon, May 29, 2017

More than two decades ago, with the aim of “foster[ing] democracy by ensuring public access to agency records and information,” Congress amended the Freedom of Information Act to require agencies to proactively post frequently requested records online. As the legislative history makes clear, the purpose of this mandate was to “prompt agencies to make information available affirmatively on their own initiative in order to meet anticipated public demand for it.”

Pursuant to this amendment, the U.S. Department of Agriculture’s (USDA) Animal and Plant Health Inspection Service began posting records online related to its enforcement of the Animal Welfare Act (AWA) — our nation’s most significant animal protection law. In doing so, the agency noted that it received more requests for these documents than for any other category of records and acknowledged that, given this frequency and “the continuing high interest from animal interest groups as well as the general public,” the law required such posting.

Despite this clear recognition of its legal duties, in a much–publicized move earlier this year, the agency abruptly took all of these records down from its website. Dubbed the #USDAblackout, the action was almost universally condemned, not just by animal advocates but also by more than 100 members of Congress and even those in the very industries regulated by the AWA and subject to the disclosures, including zoos, research institutions, and the pet trade. The takedown of the website was Orwellian — the agency claimed it was done “[b]ased on [its] commitment to being transparent [and] remaining responsive to [its] stakeholders’ informational needs.” But what has ensued since is perhaps even more surreal.

Read more here.

FOIA News: Why is access to public records so complicated?

Why Is Access To Public Records Still So Frustratingly Complicated?

Steven Melendez, Fast Company, May 31, 2017

Earlier this month, House Oversight Committee Chairman Jason Chaffetz wrote to the Federal Bureau of Investigation demanding former FBI director James Comey’s notes of conversations with President Trump.

Congress has wide discretion to investigate what it chooses, including the right to issue subpoenas demanding access to potential evidence. But Chaffetz isn’t the only one interested in reading Comey’s notes, which reports have indicated document the president attempting to influence the FBI’s investigation into Russian election interference. The American Civil Liberties Union and Electronic Privacy Information Center have both filed requests under the Freedom of Information Act for the documents.

“While we hope that Congress will be serious about its constitutional oversight role, we believe the issues raised by the Comey memos are so vital that the public should have access to them without delay,” wrote Hina Shamsi, director of the ACLU National Security Project, in a blog post.

Read more here.