FOIA News: MuckRock offers free FOIA training on Mar. 19

MuckRock is offering a free “FOIA 101 training” on Thursday March 19. The training is online and free, but RSVPs are required. See details here.

FOIA News: ASBL recovers $500,000 in FOIA win

American Small Business League beats DoD and Lockheed in Federal Court and recovers $500,000; Pentagon Fails at Attempt to Withhold Key Pentagon and Lockheed Documents

Business Wire, Mar. 18, 2020

The United States government has paid $500,000 in compensation to the American Small Business League (ASBL), which prevailed in part on a multi-year court battle to force the Department of Defense to disclose documents showing whether big defense contractors like Lockheed Martin complied with laws requiring them to subcontract to small business. Read more here.

Court opinion issued Mar. 17, 2020

White v. Exec. Office of U.S. Attorneys (S.D. Ill. 2020) -- ruling that: (1) FBI’s processing rate of 500 pages per month was reasonable given the “large volume and complexity” of responding to plaintiff’s requests and because plaintiff “failed to articulate any real public interest in the records he seeks”; (2) FBI properly refused to confirm or deny existence of records pertaining to third parties pursuant to Exemptions 6 and 7(C); (3) FBI properly refused to confirm or deny existence of alleged informants pursuant to Exemptions 7(D) and 7(E); (4) plaintiff failed to exhaust his administrative remedies on requests that he either failed to reasonably describe or failed to appeal; (5) FBI did not improperly withhold records that Federal Bureau of Prisons refused to accept delivery of due to security concerns; and (6) plaintiff was not entitled to summary judgment on request for records withheld pursuant to Exemption 7(A) because FBI agreed to recheck the request when the status of the investigation is likely to have changed to closed; and (7) FBI performed adequate searches on remaining requests.

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

FOIA News: More on FBI's suspension of FOIA portal

Axios reports that an unnamed government attorney stated that the FBI must “drastically reduce its FOIA processing because it cannot do the work remotely, due to the system’s security constraints.” According to the attorney, “FOIA processors need to be on-site to do the work, but they are too closely positioned to be able to conform to the new social distancing guidance.” See full article here.

FOIA News: OGIS to assess online reading rooms

The Office of Government Information Services announced today that it will conduct an assessment of online FOIA reading rooms pursuant to a recommendation of the FOIA Advisory Committee. See more details here.

FOIA News: FBI suspends use of FOIA portal due to virus

The FBI will not accept requests or send responses through its “eFOIPA” portal due to the Coronauvirus pandemic, according to an announcement on the agency’s web page. Requests will be accepted only via standard mail.

The FBI’a announcement did not explain how it would be safer or more efficient to rely on standard mail instead of an electronic system, nor can the author of this post imagine how it could.

Q&A: C’mon talk to me, so you can see . . .

Q. I received an email from OSHA asking whether I was still interested in my 2018 request, which was found after a “clean-up” of their system. I responded that I wanted the records sent to me, but I haven’t received them. What’s going on?

A.  My strong hunch is that OSHA did not have copies of the requested records on hand when it sent you the “still interested” email. It likely was waiting for your response before beginning its search. How long it will take OSHA to complete your request is impossible to predict. You might consider contacting the agency and asking for an estimated completion date. 

FOIA News: TRAC and American Oversight Pen Replies to DOJ's Claire Murray

Department of Justice Official Uses Sunshine Week Event to Spread Misinformation about FOIA Processing

TRAC, Mar. 17, 2020

At a recent Sunshine Week event, a Department of Justice spokesperson claimed that FOIA applicants are now quicker to litigate, then blamed overly-litigious requesters for straining the workloads of FOIA professionals and bogging down ordinary citizens' FOIA requests.

TRAC finds the underlying claim to be unsubstantiated and counterfactual. TRAC's recent empirical study found that not only were requesters not jumping into court immediately, requesters were actually waiting on average six months-a full month longer than they had five years ago-before filing a FOIA lawsuit. Additionally, TRAC found that the increase in FOIA lawsuits was due to FOIA officials' failure to respond to requests in a timely manner as required by law.

Read more here.

THE INCREASE IN FOIA LAWSUITS ISN’T THE PROBLEM — IT’S AGENCIES UNDERFUNDING THEIR TRANSPARENCY OBLIGATIONS

American Oversight, Mar. 17, 2020

Sunshine Week celebrates the success FOIA has had in providing the public with insight into the operations of the federal government. But the ability of the law to serve this important function is facing increasing challenges as requests are met by long agency backlogs and delays in processing. FOIA cannot serve its intended functions if agencies are permitted to set a timetable that avoids access to agency records when they are salient to current public debates. Thus it is disappointing to hear the Department of Justice’s chief FOIA officer, acting Associate Attorney General Claire Murray, opening the department’s Sunshine Week festivities by complaining that requesters are “filing suit as soon as they can” when agencies fail to meet their legal obligations under FOIA. 

…

Unfortunately, many agencies across the executive branch have failed to meet their obligation to make timely determinations on FOIA requests. As a result, they have developed significant FOIA backlogs, and FOIA requesters face increasing delays in receiving the documents to which they are entitled. It is not unusual for FOIA requesters to be told that the search for records responsive to their FOIA will not even be initiated until more than a year after the request was submitted, and several agencies recently have been giving requesters estimated dates for the completion of their requests that are several years in the future. 

Read more here.

FOIA News: OIP Publishes 2019 FOIA Litigation and Compliance Report

2019 FOIA LITIGATION AND COMPLIANCE REPORT NOW AVAILABLE

Office of Information Policy, Mar. 17, 2020

This week, the Office of Information Policy (OIP) posted the Department’s 2019 FOIA Litigation and Compliance Report.  In accordance with the FOIA, each year the Department of Justice submits to Congress and the President a report detailing our efforts to encourage agency compliance with the FOIA.  The report also contains a listing of all FOIA litigation cases received and decided in the prior calendar year.  The report highlights the many ways that OIP works to provide guidance, trainings, and counseling to agencies to assist them in their FOIA administration and to promote agency accountability.      

Read more here.

Court opinions issued Mar. 16, 2020

Dillon v. DOJ (D.D.C.) -- concluding that FBI conducted adequate search for certain records pertaining to agency’s anthrax investigation of Dr. Bruce Ivins, and that it properly relied on Exemption 5 (deliberative process privilege) to withhold portions of FBI’s “Interim Major Case Summary.”

Porup v. CIA (D.D.C.) -- ruling that: (1) plaintiff’s “pattern-or-practice” claim was mooted by new agency guidance instructing officials not to decline requests solely because they pertain to matters outside of CIA’s primary mission; (2) CIA performed adequate search for records about its use of poison for covert assassinations, and that it properly withheld certain records pursuant to Exemption 3 in conjunction with the National Security Act.

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