FOIA Commentary: DOJ releases FY 2018 FOIA metrics

On June 6, 2019, the Department of Justice released a summary of the annual FOIA reports prepared by federal agencies for the fiscal year 2018. The staff of FOIA Advisor — Allan Blutstein, Ryan Mulvey, and Kevin Schmidt — reacts to DOJ’s report.

AB: My first thought was “it’s about time,” because fiscal year 2018 ended more than eight months ago. As for the data, I was not surprised by the increase in the number of incoming FOIA requests, though the total number (863,729) fell short of the one million figure predicted by OIP’s director. Nor was I surprised by the 17 percent increase in backlogged requests in light of the month-long government shutdown, which DOJ’s report does not even mention.

KS: The elephant in the room, as always, is the government-wide release rate that irks the FOIA community every year. The report notes an overall release rate of 93.8%, but as National Security Archive wrote on this yesterday, “[w]hat the report does not say is that OIP calculates that overly-generous figure by counting nearly entirely redacted documents as successful partial releases.” NSA estimates the release rate is closer to “between 50 and 60 percent.” It’s obvious to everyone involved that there are issues to be addressed in FOIA processing (resources, staffing, technology, etc.), so it helps nobody when these reports provide a distorted view of the what’s actually happening.

RM: In my mind, it would be helpful for the DOJ summary to breakdown statistics and distinguish between “true” FOIA requests and first-party requests governed by the Privacy Act. Considering the number of first-party requests handled by agencies such as the Department of Homeland Security, bracketing the Privacy Act may provide a more accurate picture of where the government is with administration of the FOIA. I also would have like more information about how agencies are complying with their proactive disclosure obligations. For example, how often are agencies posting frequently requested/”rule of 3” records?

FOIA News: Summary of DOJ's FOIA report

2018 sees record number of FOIA requests, information seekers change

By Amelia Brust, Fed. News Network, June 7, 2019

The Justice Department’s prophecy that fiscal 2018 would be a record year for Freedom of Information Act requests came true. But as the number of requests continues to rise, the make-up of people submitting most of them has shifted.

Journalists are now the second-most common requesters of government records; the majority are now people seeking information on themselves.

In FY 2018 federal agencies received 5.6% more requests, or an increase of 45,458, than in FY 2017, for a total of 863,729 requests. Collectively, agencies also processed 0.85% more requests, or 830,060 total, in FY 2018 versus the previous year, according to DOJ’s annual report released Thursday.

Read more here.

FOIA News: OIP Announces All Fiscal 2018 FOIA Reports Finalized

NEW ANNUAL FOIA REPORT DATA AVAILABLE ON FOIA.GOV & OIP PUBLISHES ITS SUMMARY OF THE ANNUAL FOIA REPORT DATA FOR FISCAL YEAR 2018

Office of Information Policy, June 6, 2019

The Office for Information Policy is pleased to announce that all 118 agencies subject to the FOIA have finalized their Fiscal Year (FY) 2018 Annual FOIA Reports, and that OIP has released its Summary of the Annual FOIA Report Data for FY 2018. 

“With more than 100 agencies subject to the FOIA, this Summary is designed to be a ready resource for both agencies and the public, to gain an understanding of overall FOIA administration.” said Director Melanie Ann Pustay of the Office of Information Policy. 

Read more here.

Court opinion issued June 3, 2019

Humane Soc'y of U.S. v. Animal & Plant Health Inspection Serv. (D.D.C.) -- finding that: (1) agency improperly relied on Exemptions 6 and 7(C) to withhold narrative portion of inspection reports, among other items, noting that privacy exemptions do not protect “details about a business’s compliance with regulations and statutes;” further noting that government failed to demonstrate that disclosure would likely invite harassment and stigma; and (2) agency properly relied on Exemptions 6 and 7(C) to withhold licensee addresses and contact information from the inspection documents, as well third-parties’ names, images, and personally identifying information.

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

Op-Ed: SCOTUS should uphold competitive harm test

Will corporations decide what information the public gets?

By Thomas Sussman & Lisa Rosenberg, The Hill, June 3, 2019

Recently, the Supreme Court heard oral arguments in a case that will probably fly under most people’s radar, but which may have dire consequences for the public, the press and even the free market.

The case, Food Marketing Institute (FMI) v. Argus Leader, began eight years ago when a reporter for the Argus Leader, a South Dakota newspaper, submitted a Freedom of Information Act request to the U.S. Department of Agriculture asking for information about revenue that retailers receive from the Supplemental Nutrition Assistance Program (SNAP), the federal food stamp program paid for by taxpayers.

Read more here.

FOIA News: OGIS to hold open meeting on June 14

Join Us for Our Annual Open Meeting!

By Office of Gov’t Info. Serv., June 3, 2019

Got a question for the Office of Government Information Services (OGIS)? Or do you want to hear more about our work as the Freedom of Information Act (FOIA) Ombudsman over the past year? If so, please join us for the OGIS annual open meeting on Friday, June 14, 2019, in the William G. McGowan Theater at the National Archives in Washington, DC. The meeting is from 10 a.m. to 11:30 a.m.

Read more here.

Court opinion issued May 31, 2019

Kopp v. U.S. Secret Serv. (N.D. Cal.) -- awarding $21,692.66 in attorney’s fees and costs in connection with request for records concerning Donald Trump, Jr.’s trip to India, rejecting government’s argument that two of plaintiff’s requests were overly broad and vague.

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

Court opinion issued May 30, 2019

Am. Civil Liberties Union v. NSA (2nd Cir.) -- affirming district court’s decision that six intelligence program documents were exempt from disclosure under Exemptions 1 and 3, and that a DOJ/Office of Legal Counsel memorandum was protected pursuant to Exemption 5. Notably, the Circuit rejected appellant’s arguments that the government’s Exemption 5 withholdings were undermined by the doctrines of “working law,” “express adoption,” or “incorporation by reference.”

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

Court opinion issued May 23, 2019

Satterlee v. Comm’r of IRS (W.D. Mo., 2019) -- concluding that: (1) plaintiff failed to exhaust his administrative remedies with respect to three of his four requests, which sought various records concerning tax liens; (2) plaintiff’s fourth request was improper because it sought the creation of a records or the answer to a question; (3) plaintiff was not entitled to expedited processing or to the litigation costs he incurred.

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

FOIA News: FOIA Advisory Committee to meet on June 6, 2019

The Office of Government Information Services published a notice in today’s issue of the Federal Register to announce the next meeting of the FOIA Advisory Committee on June 6, 2019, from 10:00 am to 1:00 pm. Those who wish to attend the meeting must register by June 3, 2019. The meeting will be live-streamed for those who are unable to attended on the National Archives’s YouTube channel.