FOIA News: EPA solicits "affected businesses" on potential Exemption 4 claims

The Environmental Protection Agency ("EPA") published a notice in today's issue of the Federal Register to solicit feedback from "affected business" that have previously submitted information to the agency with respect to the export and import of certain hazardous waste materials.  In order to preserve their claims over the non-disclosure of "confidential business information" in response to future Freedom of Information Act requests, the EPA is requiring businesses to submit a public comment in response to this notice.  The EPA intends to construe the failure to submit a comment as a waiver of any possible claim to business confidentiality.  The comment period ends on or before March 29, 2018.

The notice contains a detail list of the business and hazardous waste materials at issue.

FOIA News: Public Citizen files suit against Labor Dep't over use of law enforcement exemptions

Federal Contractor Watchdog Sued Over FOIA Documents Policy

Porter Wells, Bloomberg, Feb. 26, 2018

A Labor Department subagency’s alleged office policy of using law-enforcement exemptions to withhold requested documents from outside parties has put it at odds with a public advocacy group, which filed a lawsuit over the matter on Feb. 26.

The DOL’s Office of Federal Contract Compliance Programs is already dealing with complaints that it should be more transparent in its expectations and audits of federal contractor facilities as it carries out its mandate to enforce compliance with certain equal employment opportunity laws.

Public Citizen Inc., a nonprofit public interest advocacy and litigation organization, says that it filed Freedom of Information Act requests with the OFCCP to obtain copies of FOIA requests made by other parties for EEO-1 reports as well as any agency correspondence that followed those requests.

Read more here.

FOIA News: More stories on FOIA issues at the EPA

EPA faces record number of transparency lawsuits

Miranda Green, The Hill, Feb. 26, 2018

A record number of anti-secrecy lawsuits were filed in 2017 against the Environmental Protection Agency (EPA) under Administrator Scott Pruitt, Politico reported Monday.

Forty-six open records lawsuits were filed against the EPA in 2017, according to data from the FOIA Project at the Transactional Records Access Clearinghouse at Syracuse University, with a total of 55 open records lawsuits filed against the agency since President Trump took office.

The next busiest year on record was 2015, when 22 lawsuits were filed after the Obama EPA finalized major rules on wetlands protection and power plant emissions. By comparison, former President George W. Bush's EPA faced only 57 Freedom of Information Act (FOIA) lawsuits during his entire eight-year presidency.

Read more here.

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A Watchdog Group Highlights the EPA's Delayed FOIA Responses

Candace Butera, Pacific Standard, Feb. 26, 2018

Over the past year, the Environmental Protection Agency's Office of the Administrator has significantly delayed the department's processing of Freedom of Information Act requests, according to an ongoing analysis by Project on Government Oversight, a non-partisan non-profit that tracks corruption in the federal government.

The initial findings of the analysis show that the office within the EPA has only closed fewer than 17 percent of FOIA requests. The fallback in FOIA response has prompted an unprecedented spike in FOIA lawsuits filed against the Scott Pruitt-led EPA by open government groups, environmentalists, and even conservative organizations, Politico reports.

Read more here.

FOIA News: CoA Institute Calls on HUD Watchdog to Pull Flawed FOIA Rule

CoA Institute Calls on HUD Watchdog to Pull Flawed FOIA Rule

Cause of Action Institute, Feb. 26, 2018

Cause of Action Institute (“CoA Institute”) has sent a public letter to the Department of Housing and Urban Development (“HUD”) Office of Inspector General (“OIG”) to request that the agency watchdog recall and revise its recent direct final rule implementing changes to its Freedom of Information Act (“FOIA”) regulations.  Specifically, CoA Institute explained that the OIG’s flawed FOIA rule cross-references deficient fee provisions in HUD’s current department-wide regulations.

As an independent component of HUD, the OIG maintains its own rules regulating public access to its records.  In and of itself, this is not an unwelcome fact.  These component-specific FOIA regulations are important for maintaining the OIG’s independence and limiting the potential politicization of disclosure processes by HUD political staff.  Yet the OIG still relies on department-wide FOIA policy in certain important respects.  For example, the OIG cross-references many of HUD’s general regulatory provisions for charging fees to requesters.  The OIG’s new rule only slightly modified its existing cross-reference to reflect the changes introduced last year by HUD in response to the FOIA Improvement Act of 2016.

Read more here.

FOIA News: EPA facing more FOIA suits under Pruitt

Anti-secrecy lawsuits soaring against Pruitt's EPA

Freedom of Information Act litigation is pouring in as the agency refuses to divulge details about the administrator's activities and travels.

By Emily Holden, Politico, Feb. 26, 2018

The Environmental Protection Agency has experienced a huge surge in open records lawsuits since President Donald Trump took office, an analysis of data reviewed by POLITICO shows — a trend that comes amid mounting criticism of EPA's secrecy about Administrator Scott Pruitt’s travels, meetings and policy decisions.

The legal attacks also reflect widespread interest in the sweeping changes Pruitt is enacting.

The suits have come from open government groups, environmentalists and even conservative organizations that have run into a wall trying to pry information out of Pruitt’s agency. The documents they’re seeking involve a broad swath of decisions, ranging from EPA’s reversals of the Obama administration’s landmark climate change and water rules to pesticide approvals and plans for dealing with the nation’s most polluted toxic waste sites.

Read more here.

Court opinions issued Feb. 23, 2018

Singh v. USPS (9th Cir.) (unpublished) -- affirming district court's decision that agency performed reasonable search for records concerning plaintiff's employment.

Cable News Network v. FBI (D.D.C.) (consolidating five cases) -- finding that: (1) FBI conducted adequate search for documents related to James Comey's memos about President Trump and memos by Comey (or related documents) about other specific prominent figures; (2) FBI properly withheld records pursuant to Exemptions 7(A) and 7(C), but was required to release certain portions of non-responsive email chain.

Summaries of all opinions issued since April 2015 available here. 

Court opinions issued Feb. 22, 2018

Burke v. DOJ (D.D.C.) -- dismissing case because Executive Office for United States Attorneys adequately demonstrated that it never received plaintiff's request before plaintiff filed suit.

Am. Oversight v. DOJ (D.D.C.) -- finding that DOJ properly determined that plaintiff was not entitled to expedited treatment of request concerning Noel Francisco, then Acting Solicitor General.  Although plaintiff demonstrated existence of widespread media interest in Mr. Francisco's nomination as Solicitor General, DOJ "correctly concluded" that plaintiff failed to show that media's interest "raised possible questions about government integrity that affect public confidence."  Notably, in reaching its decision, the court rejected plaintiff's argument that DOJ's interpretation of applicable regulation, 28 C.F.R. §16.5(e)(2), was not entitled to deference.   

Summaries of all opinions issued since April 2015 available here. 

Court opinion issued Feb. 21, 2018

Rodriguez v. FBI (D.D.C.) -- concluding that DOJ's Criminal Division and Executive Office for United States Attorneys failed to demonstrate that they performed adequate searches for records concerning plaintiff's criminal case.

Summaries of all opinions issued since April 2015 available here. 

FOIA News: CDC sued for records about Coca-Cola

Watchdog sues CDC for records about its interactions with Coca-Cola Co.

Wisconsin Gazette, Feb 21, 2018

U.S. Right to Know on Feb. 21 sued the U.S. Centers for Disease Control and Prevention today over the CDC’s failure to provide documents in response to six freedom-of-information requests about its interactions with the Coca-Cola Co.

The records requests are part of an investigation USRTK is conducting into Coca-Cola’s influence at the CDC and the company’s impact on public policy.

Read more here.

FOIA News: Comey's friend sues State Dep't for Mar-a-Lago-related records

Comey friend sues State Dept. for records on article promoting Mar-a-Lago

By Jacqueline Thomsen, The Hill, Feb. 21, 2018

Benjamin Wittes, the editor of Lawfare blog and a prominent friend of former FBI Director James Comey, is suing the State Department for records on its promotion of President Trump’s Mar-a-Lago resort.

Wittes states in the suit that he requested the records on Mar-a-Lago through a Freedom of Information Act (FOIA) request in May of last year. He says the State Department acknowledged the request, but has not otherwise responded.

Read more here.