FOIA News: Argus Leader files brief in Exemption 4 SCOTUS case

Argus Leader Media filed it opening brief with the Supreme Court yesterday in its Exemption 4 fight against petitioner Food Market Institute, which filed its brief last month. A summary of the case and other case filings are available on SCOTUSblog.

FOIA News: FCC defends withholdings of net neutrality comments

New York Times Not Entitled To Information About Net Neutrality Commenters, FCC Says

By Wendy Davis, Digital News Daily, Mar. 18, 2019

The Federal Communications Commission is asking a judge to reject The New York Times Company's request for information about comments submitted to the agency in its 2017 net neutrality proceeding.

The agency argues in new court papers that the data sought by the Times -- including IP addresses associated with comments -- would compromise commenters' privacy. The FCC also says it can't provide the information sought by the news company without undertaking new research.

Read more here.

Q&A: In the beginning . . .

Q. When was the first FOIA request submitted? To which agency? And what records were sought?

A. I would guess that the first request was submitted on July 4, 1967, when the statute became effective. Given the passage of fifty-plus years, however, I doubt any documents exist that could definitively answer that or your other related questions — or if they do exist, they are buried within the National Archives.

FOIA News: Senators press DOJ for FOIA improvement

U.S. Senators Push for Better Freedom of Information Act Compliance

Sierra Sun Times, Mar. 17, 2019

Senators Dianne Feinstein (D-Calif.), Chuck Grassley (R-Iowa), Patrick Leahy (D-Vt.) and John Cornyn (R-Texas), members of the Senate Judiciary Committee, are raising concern about a continued culture of secrecy in the federal bureaucracy. In a letter to the Justice Department’s Office of Information Policy, the senators noted negative trends in compliance with the Freedom of Information Act (FOIA), including a lack of responsiveness to requests, long delays and record numbers of FOIA lawsuits.

Read more here.

Court opinions issued Mar. 15, 2019

People for the Ethical Treatment of Animals v. USDA (D.C. Cir.) -- (1) reversing district court’s decision that plaintiff had failed to challenge agency’s redactions on records re-posted to its website and remanding for adjudication on merits; (2) affirming district court’s mootness dismissal as to research reports, but remanding for further agency clarification as to agency’s plans to posting inspection reports and lists of entities licensed under Animal Welfare Act.

Highland Capital Mgmt. v. IRS (N.D. Tex.) -- determining that: (1) IRS performed adequate search for records concerning Chief Counsel’s memorandum about agency’s audit of plaintiff; (2) 26 U.S.C. § 6110 was exclusive method for obtaining certain records sought by plaintiff; (3) IRS properly withheld records pursuant to Exemption 3, in conjunction with 26 U.S.C. § 6103(a), as well as Exemption 7(A) and (4) IRS failed to provide sufficient information with respect to its Exemption 5 withholdings under the deliberative process and attorney-client privileges.

Campaign Legal Ctr. v. DOJ (D.D.C.) -- concluding that DOJ improperly relied on Exemption 6 to withhold names of individuals who were carbon copied on email that reached the Attorney General regarding formation of Presidential Advisory Commission on Election Integrity.

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

FOIA News: FOIA Advisory Committee meeting next week

The FOIA Advisory Committee will meet from 10am to 1pm on Wednesday, March 20, 2019, in Washington, D.C. The agenda is available here. You can attend in person by registering on or before March 17. The meeting will be live-streamed on YouTube.

Court opinions issued Mar. 13, 2019

Judicial Watch v. U.S. Dep't of State (D.D.C.) -- holding that agency properly relied on Exemptions 1 and 3 in refusing to confirm or deny the existence of communications between Samantha Power, former United States Ambassador to the United Nations, and U.S. intelligence agencies regarding Russian interference in the 2016 election.

Pinnicchia v. U.S. Dep't of Veterans Affairs (D. Conn.) -- concluding that agency properly relied on Exemptions 6 and 7(C) to withhold name and identifying information of individual who falsely accused plaintiff of misconduct.

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

Commentary: The state of FOIA in 2019

The House Committee on Oversight and Government Reform held a FOIA hearing yesterday, as is customary during Sunshine Week, to discuss the state of FOIA. This year, government officials appeared from the Department of Justice’s Office of Information Policy, the Department of the Interior, and the Environmental Protection Agency. Neither the Office of Government Information Services—the federal FOIA Ombudsman—nor representatives from the requester community were invited to testify. The staff of FOIA Advisor, Allan Blutstein (AB), Kevin Schmidt (KS), and Ryan Mulvey (RM), share their thoughts about the hearing.

AB: I was disappointed that DOJ was unable to provide any government-wide FOIA statistics for fiscal year 2018, for example the total number of requests received and processed. Granted the government was partially shutdown for 35 days, but affected agencies still had about four months to compile their metrics. The Department of the Interior’s witness predictably drew a number of questions about the agency’s widely-criticized proposed FOIA regulation, and I was pleased to hear that DOJ will now be working with the Department on that matter. As for the lawmakers, Congresswoman Wasserman Schultz earned demerits for asserting that she had never heard of agencies performing so-called “awareness reviews;” the issue has been well-documented for many years.

KS: I’m not inclined to believe that DOJ will steer Interior in the right direction — DOJ spent the whole hearing reminding Congress it only “encourages” compliance. I was most disappointed by members of Congress that described FOIA requests as harassment of the executive branch. It didn’t add to the discussion and it distracted from real issues that could be addressed in a bipartisan fashion. And while the discussion of content of agency websites unrelated to FOIA is interesting, it shouldn’t be discussed in the annual FOIA hearing.

RM: I tend to agree with Kevin that we shouldn’t hold our breath when it comes to OIP getting Interior to fix its proposed FOIA rule. (In all honesty, I’m surprised that it hasn’t already been scrapped. But that’s a discussion for another time.) I had expected the hearing to be a bit more adversarial. Some of the freshmen members—such as Alexandria Ocasio-Cortez and Ayanna Pressley—weren’t terribly probing in their lines of questioning, or they seemed to veer off into topics unrelated to the FOIA, as Kevin mentioned. The decision by EPA and Interior to pull Administrator Wheeler and Acting Solicitor Jorjani as witnesses was a wise move on the part of the Administration; it defused what could have otherwise become a very partisan and un-objective affair. I suppose the most disappointing aspect of the hearing was the lack of participation on the part of the requester community. Despite the hypocrisy of the previous administration on transparency issues and the rather unfortunate scandals that occurred, things haven’t improved much and have likely gotten worse. Requesters have a lot to say about those developments.

FOIA News: Judicial Watch to depose Obama officials about Clinton’s email use

Get Your Popcorn: Judicial Watch to Interview Susan Rice, Ben Rhodes and Slew of Other Obama Officials Under Oath

Katie Pavlich, Townhall, Mar. 13, 2019

Government watchdog Judicial Watch is set to interview former White House National Security Advisor Susan Rice and Deputy National Security Advisor Ben Rhodes about Benghazi and Hillary Clinton's illegal email server. They've been given the green light by a federal court to do so. avlich

Read more here.

FOIA News: Recap of House FOIA hearing

FOIA Requests Are Up In Trump Era, But Parties Disagree on Whether That’s Good

By Charles S. Clark, Gov’t Exec., Mar. 13, 2019

Three key players in the governmentwide effort to improve Freedom of Information Act responsiveness were summoned to a House hearing on Wednesday of the annual Sunshine Week.

Though all agreed that outsider requests have shot up since President Trump took office, Republicans and Democrats pressed differing priorities for use of what both consider a valuable tool of transparency.

Their questions to witnesses from the FOIA office at the Justice Department, Interior Department and the Environmental Protection Agency showed that one lawmaker’s pursuit of accountability is another lawmaker’s politics.

Read more here.