FOIA News: DOJ-OIP Releases Updated List of Exemption 3 Statutes

The Department of Justice Office of Information Policy has published an updated list of statutes found to qualify under FOIA Exemption 3 as grounds for withholding.

Q&A: Say your prayers

Q. Can I make a request about the disbursement of monies donated to my church in New York? I suspect a cover up of waste, fraud, and financial abuse of a widow’s endowment.

A. New York’s Freedom of Information Law (FOIL) applies to government agencies, not to private entities..  Thus, your church would not be legally obligated to respond to your FOIL request.  And unlike most tax-exempt organizations, churches generally are not required to file tax returns. So it is unclear to me how you would be able to access any of the church’s financial information from a government agency.  

FOIA News: FDA wins Exemption 4 case

FDA Redactions Upheld in FOIA Suit for Drug Approval Documents

Maeve Allsup, Bloomberg Law, Oct. 6, 2020

• Journalist sued for information on accelerated drug approval

• High court ruling outlined requirements for confidential documents

The Food and Drug Administration correctly redacted documents regarding the approval of a drug based on a Supreme Court ruling regarding the application of the Freedom of Information Act, a federal judge in New York said Tuesday.

Charles Seife, a science writer and journalism professor sued the agency under FOIA in the U.S. District Court for the Southern District of New York, seeking records related to the accelerated approval of eteplirsen, a drug created by Sarepta Therapeutics Inc. for the treatment of a rare neuromuscular disease.

Read more here (accessible with subscription).

Court opinions issued Oct. 5, 2020

Pub. Justice Found. v. Farm Service Agency (N.D. Cal.) -- determining that agency’s declarations were too conclusory to show that agency performed adequate search for records pertaining to its FOIA policies and directives.

Council on American-Islamic Relations v. U.S. Customs & Border Prot. (W.D. Wash.) -- ruling that: (1) agency failed to show that it conducted reasonable search for records pertaining to heightened screening instructions issued by Seattle Office in January 2020; (2) agency improperly relied on deliberative process privilege to withhold discussions of “public-facing” statement; (3) agency properly relied on Exemption 6 to withhold employee email addresses and names of lower-level officials, but was required to release names of two senior officials who implement policy at issue; (4) agency did not provide sufficient details to permit court to evaluate its Exemption 7(E) claim and ordering in camera review of disputed documents.

Bragg v. CIA (D.D.C.) -- dismissing suit because plaintiff failed to respond to government’s motion to dismiss on exhaustion grounds.

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

FOIA News: OSHA to pay $120k to settle cases involving injury & illness reports

OSHA Agrees to Pay $120,000 to Settle Employer Data FOIA Cases

By Bruce Rolfsen, Bloomberg Law, Oct. 2, 2020

• Agency forced to release records in two cases

• Agreement with plaintiff still needs court approval

The Occupational Safety and Health Administration’s failed court battle to prevent the public release of employers’ annual injury and illness reports could cost taxpayers $120,000, with another litigation bill expected in a similar case.

An Oct. 1 stipulation filed at an Oakland, California, U.S. court by Department of Labor and the Center for Investigative Reporting says the government has agreed to pay the nonprofit news organization $120,000 to cover litigation costs for two lawsuits against OSHA. Neither settlement has received court approval.

Read more here (accessible with subscription).

Court opinion issued Oct. 1, 2020

Peak v. DOJ (D.D.C.) -- concluding that FBI performed reasonable search for DNA records pertaining plaintiff’s first-degree murder conviction.

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

FOIA News: WaPo looks at COVID-related FOIA delays

Public records requests fall victim to the coronavirus pandemic

By Nate Jones, Wash. Post, Oct. 1, 2020

With most government employees still working from home because of the coronavirus pandemic, the disclosure of public records by many federal agencies and local government offices nationwide has worsened or even ground to a halt.

When the pandemic was declared in early March, many employees at local, state and federal agencies abandoned their offices and began working remotely. Employees tasked with answering open-records requests have been forced to rely on telework computer systems that are often incompatible with the software used to process records requests.

Read more here.

Court opinion issued Sept. 30, 2020

Elec. Privacy Info. Ctr. v. DOJ (D.D.C.) — after reviewing Mueller Report in camera and holding ex parte hearing with DOJ, ruling that: (1) DOJ properly withheld grand jury information and intelligence sources and methods pursuant to Exemption 3 in conjunction with Federal Rule of Criminal Procedure 6(e) and the National Security Act of 1947, respectively; (2) DOJ properly withheld FBI file names and serial numbers pursuant to Exemption 7(A), identifying information about third parties pursuant to Exemption 7(C), and FBI investigative techniques and procedures pursuant to Exemption 7(E); and (3) DOJ improperly withheld records pursuant to Exemption 5’s deliberative process privilege, because disputed information was not predecisional.

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

FOIA News: OGIS examines performance measures for non-FOIA professionals

The Office of Government Information Services has issued an assessment of FOIA performance measures for non-FOIA professionals. The assessment was undertaken in response to a recommendation from the 2016-2018 term of the FOIA Advisory Committee.

FOIA News: DOJ must release more Mueller report info, court rules

Judge orders DOJ to publish info redacted as privileged from Mueller report

By Harper Neidig, The Hill, Sept. 30, 2020

A federal judge on Wednesday ordered the Department of Justice (DOJ) to publish information redacted from the Mueller report that had been designated as privileged.

District Judge Reggie Walton said the Trump administration had failed to justify certain redactions from the report on the special counsel's investigation into Russian interference in the 2016 election.

The specific redactions he took issue with cover the decisionmaking process within former special counsel Robert Mueller's team over whether to charge certain people with crimes during the probe.

Read more here.