FOIA News: Legal academics infrequently use FOIA

How, and How Often, Do Legal Academics Use FOIA?

By Ryan Scoville, Lawfare, Mar. 4, 2019

Since its enactment in 1966, the Freedom of Information Act (FOIA) has served as a significant source of transparency in government, allowing anyone to access official records that would otherwise be unavailable to the public. Legal academics have analyzed the statute in numerous law review articles, most of which seem to embrace FOIA’s underlying goals. Yet the actual use of FOIA and its state-law equivalents in legal academia has been quite limited. By my count, fewer than 60 law review articles in the entire Westlaw database report that the author obtained or tried to obtain records under a freedom-of-information law in carrying out the underlying research. In other words, law professors generally embrace transparency—but have traditionally relied upon others to supply it.

Read more here.

Court opinions issued Mar. 1, 2019

Pronin v. BOP (D.D.C.) -- determining that agency failed to adequately justify its searches and/or withholdings in response to plaintiff’s three requests for complete lists of names and titles of agency staff at three prisons.

Reporters Comm. for Freedom Press v. FBI (D.D.C.) -- holding that FBI improperly relied on Exemption 7(E) in refusing to confirm or deny records concerning its impersonation of filmmakers, reasoning that FBI’s investigative technique was well known to the public and that the effectiveness of FBI’s technique would not be impaired by confirming or denying existence of records.

Summaries of all published opinions issued since April 2015 are available here.

Court opinion issued Feb. 28, 2019

Animal Welfare Inst. v. Nat'l Oceanic & Atmospheric Admin. (D.D.C.) -- finding that NOAA properly relied on attorney-client and work-product privileges to withhold draft legal memorandum concerning enforcement of permitting rules for orca whale known as Tilikum; noting that those privileges were not waived when NOAA shared memorandum with other agencies because they shared common legal interests.

Summaries of all published opinions issued since April 2015 are available here.

Court opinion issued Feb. 27, 2019

Protect Democracy Project v. HHS (D.D.C.) — ruling that HHS failed to justify its use of the deliberative process privilege to withhold records concerning the discontinuation of advertising on government healthcare website, but that it properly withheld records pursuant to the attorney-client privilege.

Summaries of all published opinions issued since April 2015 are available here.

Court opinion issued Feb. 26, 2019

Pena-Martinez v. DOJ (D.D.C.) -- finding that FBI did not justify Glomar response to request for alleged informant records because it failed to address facts indicating that the alleged informant testified as government witness during plaintiff’s trial and was referred to as an informant.

Summaries of all published opinions issued since April 2015 are available here.

FOIA News: FOIA Advisory Committee meeting agenda now available

Mark Your Calendars: Wednesday, March 20, 2019 FOIA Advisory Committee Meeting

OGIS Blog, Feb. 27, 2019

An academic snapshot of Freedom of Information Act (FOIA) administration will be the focus of the next FOIA Advisory Committee meeting on March 20, 2019, in the William G. McGowan Theater at the National Archives in Washington, DC.

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Professors Khaldoun AbouAssi and Tina Nabatchi, of American University and Syracuse University, respectively, will present findings from their analysis of government-wide FOIA data that reveals trends in how FOIA is administered by Federal government agencies.

Read more here.

FOIA News: Treasury and NEA finalize revised FOIA regulations

The Department of the Treasury (here) and the National Endowment for the Arts (here) both published final rules implementing revised FOIA regulations in today’s issue of the Federal Register. The Treasury rule, which is effective March 29, 2019, was intended to bring the agency into conformity with the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016. No substantive changes were made to the proposed rule that was published for comments in October 2018. NEA’s regulations, which were revised for the same reasons, are effective immediately. No public comments were received by the agency.

FOIA News: U.S. advises SCOTUS to overturn Nat'l Parks test

The United States filed an amicus brief today on behalf of the petitioner in the Supreme Court case Food Market Inst. v. Argus Leader, arguing that the Eighth Circuit misinterpreted the meaning of “confidential” information under Exemption 4.

FOIA News: EPA seeking senior FOIA attorney

The Environmental Protection Agency has issued a vacancy announcement for an attorney to serve as the principal adviser to the Chief FOIA Officer and the Administrator with respect to EPA's nationwide FOIA program. The deadline to apply for this senior executive service position is March 20, 2019.

FOIA News: DOJ & NARA announce "Sunshine Week" events

The Department of Justice and the National Archives and Records Administration will host separate Sunshine Week events on March 11, 2019. DOJ’s two-hour program, which begins at 10am, will include a keynote by the Principal Deputy Associate Attorney General of the United States, as well as the Department’s annual Sunshine Week FOIA Awards Ceremony. NARA’s four-hour program, which begins at 1pm, will include a conversation between the Archivist and the Chief Judge of the U.S. District Court for the District of Columbia, as well as panel discussions about the Office of Government Information Services and electronic recordkeeping.