FOIA News: DOJ's Civil Division complains about FOIA requests

Watchdogs Use FOIA as a ‘Weapon,’ Justice Department Complains

The memo acknowledges a salient fact: There are more people than ever taking it upon themselves to inform the general public about the activities of the U.S. government.

By Lachlan Markay, Daily Beast, May 16, 2019

The Department of Justice complained in early 2018 that nonprofit good-government groups were weaponizing federal open-records laws, according to a memo obtained, appropriately enough, through a Freedom of Information Act request.

“A host of government watchdog groups now essentially seek to use FOIA requests and related litigation as a weapon in the political and advocacy process,” reads the memo, authored by the DOJ’s civil division, which is charged with defending the government in FOIA lawsuits.

Read more here (subscription required)

FOIA News: DOJ updates two sections of FOIA Guide

The Department of Justice’s Office of Information Policy has updated the first two sections of DOJ’s Guide to the Freedom of Information Act. The FOIA Guide was once reprinted annually or biannually, but it has been updated only sporadically online in recent years.

FOIA News: Spanberger-related docs released

Closing the Book on Spanberger’s SF-86

By Evan Kielar & Scott R. Anderson, Lawfare, May 13, 2019

Last year, one of us filed a “meta-FOIA” request with Benjamin Wittes seeking information on how former CIA officer and then-congressional candidate (now congresswoman) Abigail Spanberger’s unredacted SF-86 form was released in response to a right-wing advocacy group’s FOIA request. We petitioned both the National Archives and Records Administrations (NARA) and the U.S. Postal Service (USPS), each of which had played a role in the release.

Read more here.

Court opinions issued May 8 and May 10, 2019

May 10, 2019

Scott v. U.S. Attorney Offices (D. Md.) -- dismissing lawsuit after determining that plaintiff failed to appeal EOUSA’s initial response to his request and that EOUSA released all responsive records.

May 8, 2019

Chetal v. U.S. Dep't of Interior (N.D. Cal.) -- denying plaintiff’s motion for sanctions after finding that government produced records ordered to be released.

Am. Civil Liberties Union of Me. Found. v. DHS (D. Me.) -- upholding in part DHS’s Exemption 7(E) redactions to records concerning immigration investigations in which government officers stopped bus passengers to ask whether they are United States citizens.

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

FOIA News: Identity of U.S. Attorney's lover to remain secret

BuzzFeed Won't Seek ID Of Subordinate In Affair With US Atty

Law360, May 8, 2019

BuzzFeed has agreed not to push for the federal government to reveal the identity of a subordinate  who had an affair with a U.S. attorney, signing off on a proposed settlement in New York federal court in which only the top official's name would be released.

Read more here (accessible with free trial subscription),

FOIA News: NY AG sues Treasury for non-profit guidance

New York attorney general sues Trump Treasury, IRS

By Naomi Jagoda , The Hill, May 6, 2019

New York Attorney General Letitia James (D) on Monday filed a lawsuit against the Treasury Department and IRS, arguing that the agencies have failed to respond to information requests about their guidance reducing donor disclosure requirements for certain tax-exempt groups.

"My office depends on these critical donor disclosure forms to be able to adequately oversee non-profit organizations in New York," said James, who filed the suit alongside New Jersey Attorney General Gurbir Grewal (D).

Read more here.

FOIA News: DOJ experimenting with artificial intelligence for FOIA requests

DOJ exploring artificial intelligence to help process FOIA requests

By David Thornton, Fed. News Network, May 3, 2019  

Though the data has yet to be released, Melanie Pustay, director of the Justice Department’s Office of Information Policy (OIP), expects 2018 was another record-breaking year for Freedom of Information Act requests. That means additional burdens on FOIA staff governmentwide, greater difficulty in reducing existing backlogs, and an interest in new ways of handling the increasing demand.

“I’m certainly expecting there to be even more FOIA requests for fiscal year [2018] than the year before,” Pustay said on Agency in Focus – Justice Department. “Certainly our trend line has been ever increasing numbers of requests; the public just seems like they can’t get enough of government information. And obviously it’s a great thing. On the one hand, we love to see people engage, but the challenge for agencies is keeping up with the demand.”

Read more here.

Court opinion issued May 1, 2019

Yagman v. Haspel (9th Cir.) (unpublished) -- (1) reversing district court’s decision that plaintiff failed to reasonably describe his request for records pertaining to torture and that plaintiff was not entitled to costs for prior, successful appeal; (2) affirming district court’s decision to deny plaintiff’s motion to disqualify judge.

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

Court opinions issued Apr. 30, 2019

Citizens for Responsibility & Ethics in Wash. v. DOJ (D.C. Cir.) -- in a 2-1 opinion, affirming district court’s decision to dismiss plaintiff’s claim seeking all formal written opinion of Office of Legal Counsel, as well as indices of those opinions, under so-called “reading-room” provision. The dissent argued that the majority erroneously placed burden on plaintiff to request records that were not exempt, and that plaintiff alleged sufficient facts to survive motion to dismiss.

Brennan Ctr. for Justice at N.Y. Univ. Sch. of Law v. DOJ (S.D.N.Y.) -- ruling that: (1) DHS and OMB performed inadequate search for records pertaining to President Trump’s voter integrity commission; and (2) government was required to determine whether relevant custodians maintained responsive records on their personal email accounts, because plaintiff produced evidence that two agency employees maintained such records.

Willis v. Nat'l Sec. Agency (D.D.C.) -- finding that NSA properly refused to confirm or deny existence of intelligence records pertaining to plaintiff under Exemptions 1 and 3, and that it performed adequate search for non-intelligence records.

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

Court opinion issued Apr. 29, 2019

Am.. Oversight v. EPA (D.D.C.) -- holding that plaintiff failed to demonstrate that EPA maintains a policy or practice of refusing to process any request for communications records unless a requester provides a subject matter or keyword for the search.

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