Today the Government Accountability Office released a report concerning agency use of Exemption 3. GAO found that between fiscal years 2010 and 2019, 91 agencies reported withholding information using at least one of FOIA’s 256 Exemption 3 statutes a total of more than 525,000 times. Additionally,GAO found that use of Exemption 3 more than doubled from fiscal year 2012 to fiscal year 2019, while the number of FOIA requests processed increased 32 percent.
FOIA News: More 2020 annual reports available
FOIA News (2015-2025)CommentA number of agencies have posted their fiscal year 2020 annual reports online. See list below. Agencies were required to submit their reports to the Department of Justice by November 11, 2020. The agencies’ deadline for posting reports on their websites is March 1, 2021. DOJ will also post the reports here.
FOIA News: Round-Up of Recent Stories
FOIA News (2015-2025)CommentBrian Kutner, CIA Can Shield Records on Syrian Rebel Funding, Courthouse News (Feb. 9, 2021)
Twitter may have banned former President Donald Trump, but his disruptive use of the platform is still being argued in court.On Tuesday morning, the D.C. Circuit sided with the CIA in a dispute involving a Freedom of Information Act request from BuzzFeed stemming from a Trump tweet.
2nd Cir. Says Judges Can Order Public Posting of FOIA Docs, Law360 (Feb. 5, 2021)
A split Second Circuit on Friday ruled that the Freedom of Information Act authorizes courts to order the public posting of hidden government documents — a victory for a legal service provider seeking the online publication of 750,000 immigration appeals decisions. In a precedential 2-1 decision, the appeals court revived New York Legal Assistance Group’s suit seeking to make available to the general public every unpublished, or nonprecedential, U.S. Board of Immigration Appeals decision issued since 1996, as well as any future ones.
(Article paywalled)
Court opinion issued Feb. 9, 2021
Court Opinions (2015-2024)CommentLeopold v. Cent. Intelligence Agency (D.C. Cir.) -- reversing district court’s order that the CIA confirm or deny the existence of records concerning “payments to Syrian rebels,” and rejecting the requester’s argument that a tweet from President Trump “officially acknowledged” the “government’s intelligence interest in the broader categories of records
. . . requested” because that tweet was “subject to several plausible interpretations,” may have “fabricated facts,” and did not actually “reveal the existence of Agency records about the alleged [payment] program.”
Summaries of all published opinions issued since April 2015 are available here.
FOIA News: Dep't of Transportation releases annual FOIA report for 2020
FOIA News (2015-2025)CommentThe U.S. Department of Transportation appears to be the first cabinet agency out of the gate in posting its annual FOIA report for fiscal year 2020. DOT reported that it received 14632 requests during the year and that it processed 15433 requests, reducing the number of “pending” requests from 6368 to 5567. The number of “backlogged” requests— i.e., legally overdue—nevertheless rose from 3578 to 4272, a nearly 20 percent increase.
Court opinion issued Feb. 8, 2021
Court Opinions (2015-2024)CommentTrotter v. Ctr. for Medicare & Medicaid Serv. (D.D.C.) -- deciding that CMS properly relied on Exemption 6 to withhold domain portions of email addresses associated with registered healthcare providers, except for domain names that CMS already releases for participants in a digital records-sharing program.
Summaries of all published opinions issued since April 2015 are available here.
Court opinions issued Feb. 5, 2021
Court Opinions (2015-2024)CommentAccurso v. DOJ (D.D.C.) -- concluding that FBI properly relied on Exemptions 7(C) and 7(E) to withhold records pertaining to plaintiff’s prosecution for distributing child pornography.
NY Legal Assistance Grp. v. Bd. Immigration Appeals (2nd Cir.) -- in a 2-1 decision, vacating and remanding district court’s decision that agency was not required to affirmative publish its non-precedential opinions pursuant to 5 U.S.C. § 552(a)(2).
Summaries of all published opinions issued since April 2015 are available here.
Court opinions issued Feb. 4, 2021
Court Opinions (2015-2024)CommentRenewable Fuels Ass’n v. EPA (D.D.C.) -- holding that EPA properly relied on Exemption 4 to withhold the names and locations of oil refineries that applied for relief from the agency’s Renewable Fuel Standard program, except for a small number of refineries that did not appear to customarily treat all of its applications as private. Notably, the court stated that a government assurance of privacy was not required under binding D.C. Circuit law in order for information to qualify for Exemption 4. The court further stated that even if it was able to ignore binding precedent, it believed that the “better approach would be that privately held information is generally confidential absent an express statement by the agency that it would not keep information private, or a clear implication to that effect (for example, a history of releasing the information at issue).”
Bd. of Comm'rs of Clermont Cnty. v. EPA (S.D. Ohio) -- finding that EPA properly relied on Exemption 5’s deliberative process and attorney-client privileges to withhold records about a closed hazardous waste dump.
Summaries of all published opinions issued since April 2015 are available here.
Court opinion issued Feb. 3, 2021
Court Opinions (2015-2024)CommentN.Y. Times v DOJ (S.D.N.Y.) -- ordering in camera review of independent monitor’s report pertaining to intervenor-Volkswagen AG’s compliance with a 2018 plea agreement, rejecting claims by government and intervenor that withholdings were justified pursuant to Exemptions 4 and 5.
Summaries of all published opinions issued since April 2015 are available here.
FOIA News: FOIA Project Analysis Shows Increasing Backlog of Pending District Court FOIA Decisions
FOIA News (2015-2025)CommentJustice Delayed Is Justice Denied: Judges Fail To Rule in a Timely Manner on FOIA Cases
By FOIA Project Staff, The FOIA Project, Feb 3, 2021
The latest case-by-case court records show that even after filing suits, FOIA requesters are facing longer and longer delays before their cases are decided. Indeed, the backlog of pending FOIA court cases is growing much faster than the increase in litigation because judges are failing to rule in a timely manner and allowing cases to drag on for years.
As of the end of FY 2020, the number of FOIA cases pending in the federal courts climbed to 1,683. This is more than three and a half times the number of pending cases ten years ago in FY 2010 when the pending court caseload was just 467.
Read more here.