FOIA News: Notice of FOIA delays at NARA

The following notice appears on NARA’s website:

Due to the COVID-19 pandemic and pursuant to guidance received from the Office of Management and Budget (OMB), NARA has adjusted its normal operations to balance the need of completing its mission-critical work while also adhering to the recommended social distancing for the safety of our staff. As a result of this re-prioritization of activities, you may experience a delay in receiving an initial acknowledgment as well as a substantive response to your reference or FOIA request or appeal. We apologize for this inconvenience and appreciate your understanding and patience.

Read more here.

Court opinions issued Mar. 20, 2020

Reporters Comm. for Freedom of the Press v. DOJ (D.D.C) -- holding that: (1) plaintiffs’ claims were not barred by doctrines of issue preclusion or collateral estoppel because exemptions and/or documents at issue were new (2); FBI properly relied on Exemption 5 (deliberative process privilege), 7(C), and 7(E) to withhold records related to FBI’s impersonation of media.

Gellman v. DOJ (D.D.C.) -- in case involving records about plaintiff, concluding that: (1) Office of Information Policy properly withheld records as non-responsive, including portions of email chains; (2) Office of the Director of National Intelligence properly relied on Exemption 1 to withheld all but one category of records; (3) National Security Agency properly withheld records pursuant to Exemption 1 in conjunction with the National Security Act; (4) ODNI properly withheld the formatting, design, and organization of commercial entity’s new bulletins pursuant to Exemption 4; but that text of individual articles mentioning plaintiff’s name must be released; (5) DOJ properly relied on Exemption 5 (DPP) to withhold discussions about investigative techniques and how to respond to press inquiries, but it did provide adequate information for court to assess withholding of agency reactions to news articles; and (6) FBI properly wiitheld records pursuant to Exemption 7(A) and 7(E).

Petrucelli v. DOJ (D.D.C.) -- finding that: (1) Federal Bureau of Prisons conducted adequate search for records concerning plaintiff, a pro se prisoner, and that it properly withheld records pursuant to Exemptions 6 and 7(C); and (2) EOUSA did not sufficiently describe how it performed its search for records concerning plaintiff’s prosecution.

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

FOIA News: Union of Concerned Scientists thanks FOIA officers

A Thank You to FOIA Officers: Purveyors of Sunshine

By Genna Reed, Union of Concerned Scientists, Mar. 20, 2020

This sunshine week I would like to express my appreciation for all of the work that Freedom of Information Act (FOIA) officers at federal agencies have done and continue to do to ensure public access to government communications, records, and documents. With FOIA, Congress codified into law that people in our nation have the right to know how public officials allocate resources, weigh competing interests, and handle decisions on everything from chemical safety to COVID-19 emergency planning—because for taxpaying citizens, government business is their business, too. The Freedom of Information Act (FOIA) system is one of the greatest tools we have in creating a more transparent government and holding our government officials accountable.

Read more here.

FOIA News: State Dep't reportedly suspends its FOIA operations

According to a tweet from Buzzfeed reporter Jason Leopold, the State Department has suspended its FOIA operations due to COVID, resulting in requests by DOJ to delay litigation proceedings. The State Department’s FOIA web page, however, does not indicate that its FOIA operations are closed -- at least not as of the time of this post (1:55pm) -- and it appears as if requests can still be submitted electronically.

FOIA News: OGIS recaps Sunshine Week

Sunshine Week in the Age of Social Distancing

Office of Gov’t Info. Serv., Mar. 20, 2020 

As the sun sets on Sunshine Week, we hope you will continue to celebrate access to information with some interesting reading. 

First, a reminder that OGIS published its 2020 Annual Report for Fiscal Year 2019 highlighting the work we do as FOIA Ombudsman to make the process work better for all through dispute resolution and agency compliance review.  The U.S. Department of Justice, Office of Information Policy (OIP), also published a report listing all FOIA litigation cases filed and decided in 2019 and detailing OIP’s work to encourage FOIA compliance. Earlier this month, OIP announced that all 118 agencies subject to the FOIA have finalized their Fiscal Year (FY) 2019 Annual FOIA Reports. OIP has uploaded all of the data from these reports on FOIA.gov.

Read more here.

Court opinions issued Mar. 19, 2020

Butt v. U.S. Dep’t of State (D.D.C.) -- finding that plaintiff was not entitled to waiver of duplication fees because his request for records from the FBI about his criminal prosecution would not serve public interest.

Katchadourian v. DOD (D.D.C.) -- concluding that: (1) Defense Intelligence Agency properly interpreted scope of plaintiff’s request for records concerning task force that conducted damage assessment from Wikileaks, and that it also performed adequate search; (2) DIA properly determined that all records withheld pursuant to Exemption 1 were classified, but that it failed to demonstrate that it performed adequate segregability analysis; (3) DIA properly withheld records pursuant to Exemption 3 in conjunction with 10 U.S.C. § 424 and 50 U.S.C. § 3024; (4) DIA failed to show that records withheld pursuant to Exemption 5 were predecisional or deliberative; and (5) DIA was entitled to summary judgment regarding its use of Exemption 7(C) because plaintiff did not challenge it.

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

FOIA News: Research paper studies Exemption 1

A forthcoming article in the Harvard National Security Journal explores whether courts rubberstamp the federal government’s Exemption 1 claims. An abstract of the article, entitled Defense and Deference: Empirically Assessing Judicial Review of Freedom of Information Act’s National Security Exemption, has been posted here.

FOIA News: OGIS is open for business

The Office of Government Information Services announced today that all of its employees are teleworking, and therefore its responses to U.S. mail, overnight mail services, or faxes will be delayed. For fastest responses, OGIS encourages communications by email.

FOIA News: Graduate School USA cancels in-person classes though May 1

Graduate School USA, an independent, nonprofit educational institution based in Washington, DC, has will not hold any in-person classes — including the FOIA and Privacy Act course scheduled to be taught in April by OIP cofounder Richard Huff — through at least May 1, 2020. It is unclear whether the upcoming FOIA/PA course will be presented online; it will next be offered in Atlanta on May 19 and again in D.C. on June 1.

FOIA News: COVID-19 vs. FOIA: The virus is winning

COVID-19 vs. FOIA: The virus is winning

By Mike Soraghan and Jennifer Yachnin, E&E News, Mar. 18, 2020

The coronavirus may be starting to disrupt the release of government information, in addition to everyday life.

FBI officials have told attorneys for Freedom of Information Act requesters that the agency's Records Management Division is closed until at least the end of March, BuzzFeed News reported yesterday. And the agency is no longer accepting FOIA requests electronically. Instead, they must be mailed.

In Washington, WUSA reported that the D.C. Council approved emergency legislation that, among many other items, extends deadlines for FOIA requests.

Read more here.