FOIA News: OIG issues report on DHS FOIA program

OIG: DHS FOIA Response Times are ‘Better Than Average’ but Delays Over Complex Requests Must Improve

By Kylie Bielby, Homeland Security Today, July 29, 2020

In response to a request from the Senate Homeland Security and Governmental Affairs Committee, Permanent Subcommittee on Investigations, the Office of Inspector General (OIG) at the Department of Homeland Security (DHS) has conducted a review of DHS’ handling of Freedom of Information Act (FOIA) requests and congressional requests directed to the DHS Office of the Secretary — specifically, the DHS Secretary and Deputy Secretary. 

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Regarding FOIA requests, OIG found that while DHS generally met deadlines for responding to simple FOIA requests, it did not do so for most complex requests. A significant increase in requests received, coupled with resource constraints, limited DHS’ ability to meet production timelines under FOIA, creating a litigation risk for the Department. However, despite the limitations, DHS FOIA response times are better than the averages across the federal government. 

Read more here.

FOIA News: Sierra Club files opening brief in Exemption 5 SCOTUS case

Justices Must Require Release of Species Records, Group Says

Bloomberg Law, July 28, 2020

• Case involves FOIA request for endangered species documents

• Sierra Club says records not protected under exemption

The federal government can’t keep Endangered Species Act documents under wraps simply by labeling them drafts, the Sierra Club told the U.S. Supreme Court.

In a brief filed Monday, the environmental group urged the justices to uphold a lower court’s decision ordering the U.S. Fish and Wildlife Service and National Marine Fisheries Service to hand over the records under the Freedom of Information Act.

Read more here (subscription required).

Court opinions issued July 27, 2020

Bloche v. DOD (D.D.C.) -- on renewed summary judgment, which plaintiffs did not dispute, ruling that Department of the Army had justified its use of deliberative process and attorney-client privileges to withhold one document concerning involvement of medical professionals in designing and implementing interrogation tactics.

Aguiar v. EOUSA (D.D.C.) -- denying plaintiff’s request for litigation costs because plaintiff did not obtain judicial relief or demonstrate that his lawsuit “substantially caused” agency to respond to his FOIA requests. In analyzing “catalyst theory” prong, the court noted that EOUSA had been in contact with plaintiff before his lawsuit, worked with him to narrow requests, and produced some documents.

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

Court opinion issued July 24, 2020

Am. Ctr. for Law & Justice v. NSA (D.D.C.) -- ruling that: (1) National Security Agency properly relied on Exemptions 1 and 3 in refusing to confirm or deny existence of records pertaining to unmasking of Trump campaign official by five Obama Administration officials; (2) State Department’s similar Glomar response was invalid as to unmasking requests from Susan Power regarding Michael Flynn because Office of the Director of National Intelligence officially acknowledged their existence; (3) NSA’s search for certain communications referring to Donald Trump or campaign officials was partially inadequate because search terms used regarding Cheryl Mills were too limited; (4) State Department properly relied on deliberative process privilege to withhold various communications sent or received by Susan Power.

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

FOIA News: Federal reserve updates FOIA regs

The Federal Reserve Board on Friday finalized a rule that implements technical, clarifying updates to its Freedom of Information Act (FOIA) procedures and changes to its rules for the disclosure of confidential supervisory information (CSI), which is supervisory information belonging to the Board that may include proprietary financial institution-specific information. The final rule is generally similar to the proposal from June 2019, with a few changes in response to public comments.

Read more from the agency’s press release here.

FOIA News: FOIA Advisory Committee sends final report to Archivist

The Office of Government Information Services (OGIS) has delivered the Final Report and Recommendations of the 2018-2020 term of the FOIA Advisory Committee to the Archivist of the United States, David S. Ferriero. The report is the result of two years of hard work by the Committee’s 20 members, who include FOIA experts from inside and outside of government.

Read more here.

FOIA News: DOJ under fire for Mueller report redactions

Media Outlets Accuse DOJ of Selectively Redacting Mueller Records

By Megan Mineiro, Courthouse News Serv., July 23, 2020

Attorneys for news outlets suing for records from the Mueller investigation accused the Justice Department on Thursday of applying redactions that back up President Donald Trump’s echoing claim of the probe being a “witch hunt.”

“It appears that this entire process of releasing information is an attempt to paint a one-sided picture of the entire special counsel investigation,” CNN attorney Charles D. Tobin said in a teleconference hearing.

U.S. District Judge Reggie Walton, without speaking to any possible validity in the claim, appeared doubtful that the arguments applied to the case before him regarding records from the FBI investigation into Russian interference in the 2016 presidential election. 

Read more here.

Court opinions issued July 22, 2020

Am. Oversight v. U.S. Dep’t of the Treasury (D.D.C.) -- holding that Treasury properly relied on Exemption 5’s deliberative process privilege to withhold communications between Treasury officials and Congress pertaining to potential tax code legislation. Of note, the court found that Treasury had solicited advice from Congress and, therefore, the disputed communications qualified as “inter-agency” or “intra-agency” under consultant corollary doctrine.

Democracy Forward Found. v. U.S. Dep’t of Commerce (D.D.C.) -- ruling that agency was required to search Commerce Secretary’s personal email account for government-related communications because record showed that he used personal email account for official business.

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

FOIA News: DOJ to release more info from Mueller Report

'Circumstances have changed': DOJ ready for more Mueller report declassifications

By Jerry Dunleavy, Wash. Exam’r, July 21, 2020

More than a year after special counsel Robert Mueller’s report was released, the Justice Department has determined more of the redacted report can be declassified.

Civil division attorneys, including trial attorney Courtney Enlow, filed a four-page submission to a Washington, D.C., federal court on Tuesday, providing sealed responses to the judge’s questions about the redactions in Mueller's 448-page report and noting willingness to reveal more after a judge's ruling.

The response came after Judge Reggie Walton, a district court appointee of President George W. Bush who previously questioned Attorney General William Barr's "credibility" in the Freedom of Information Act case brought by the Electronic Privacy Information Center and BuzzFeed, provided the Justice Department a spreadsheet with questions about the redactions.

Read more here.

FOIA News: FOIA-related book gets thumbs down

Exhausting Effect Of FOIA Requests Evident In 'Baseless'

By Tin Mak, NPR, July 22, 20209:29 AM ET

Governmental secrecy not only permits evil, but also breeds it.

It's this concept that forms the backbone of Nicholson Baker's foray into the U.S. development of biological weapons in the 1950s. His book, Baseless: My Search For Secrets in the Ruins of the Freedom of Information Act has a promising concept, which is to use the topic as a way to examine the shortcomings of America's public records law.

The book does not deliver on that promise.

Read more here.