FOIA News: HHS defends withholding sexual abuse records

Feds Ask 2nd Circ. To Block Report On IHS Doctor Abuse

Law360, Feb. 25, 2021

The federal government should not have to release a report to The New York Times and The Wall Street Journal detailing over two decades of sexual abuse committed by a former Indian Health Service pediatrician, the U. S. Department of Health and Human Services argued Wednesday. In a Second Circuit brief, the agency sought to reverse a January order to release the report on Stanley Patrick Weber, arguing that an exception to the Freedom of Information Act blocks the release of certain "medical quality assurance" reports to encourage "candid reviews" of care provided by the Indian Health Service within HHS.

Read more here (accessible with free trial subscription).

FOIA News: OGIS Calendar of Events for Sunshine Week

Sunshine Month: Save the Dates!

Nat’l Archives & Records Admin., FOIA Ombudsman (Feb. 24, 2021)

Please mark your calendars for several virtual FOIA events coming up in March, including our Sunshine Week event on March 15!

FOIA Advisory Committee Meeting
Wednesday, March 3rd
10 a.m. to 1 p.m. (ET)

The FOIA Advisory Committee meets to hear presentations about and discuss access to records in the legislative and judicial branches, and updates from the Classification, Legislation, Process, and Technology subcommittees.

Members of the public are welcome to:

• Watch the livestream on the National Archives’ YouTube Channel.
  

• Attend the meeting virtually through Webex. Those attending the meeting via Webex will need to connect to the audio portion of the meeting by telephone. There will be a public comment period at the end of the meeting.

If you wish to attend via Webex, you must register by February 28 at 11:59 p.m. (ET). After you register, we will send you information for accessing the meeting.

National Archives Sunshine Week Program
Monday, March 15th
1 p.m. to 3 p.m. (ET)

We are pleased to announce that Senior U.S. District Judge Royce C. Lamberth will join us for a special event celebrating Sunshine Week with the National Archives. The first hour of the program will feature a conversation with Senior Judge Lamberth on open government and the legal landscape. The second hour will include a conversation with users of FOIA. 

Members of the public are welcome to

• Watch the livestream on the National Archives’ YouTube Channel.
  

• Attend the meeting virtually through Webex. Those attending the meeting via Webex will need to connect to the audio portion of the meeting by telephone.

If you wish to attend via Webex, you must register by March 12 at 11:59 p.m. (ET). After you register, we will send you information for accessing the meeting.

Read more here (including OIP Best Practices Workshops)

FOIA News: Upcoming Best Practices Workshops on COVID & FOIA

Two Upcoming Best Practices Workshops in March

Dep’t of Justice, Office of Info. Pol’y, FOIA Post (Feb. 24, 2021)

The Office of Information Policy (OIP) is pleased to announce two upcoming Best Practices Workshops this March focused on agencies’ administration of the FOIA in the face of the workplace challenges presented by the pandemic. 

Last March, agencies quickly adjusted to new workforce policies to protect the health and well-being of their employees while continuing their agencies’ missions.  In May 2020, OIP issued guidance encouraging agencies to, among other things, continuously assess their FOIA programs as circumstances evolve with a focus on finding workable solutions to maximize the efficiency and effectiveness of their FOIA programs.  In December 2020 and February 2021, the Office of Government Information Services (OGIS) issued two reports detailing its review of agency FOIA websites for public notices on the impact of the COVID-19 pandemic on agencies’ FOIA administration in accordance with OIP’s guidance. In addition, agencies detail the various challenges they faced during the year due to the pandemic and the steps taken to mitigate those challenges in their 2021 Chief FOIA Officer Reports.  As reflected in these reports, many agencies have made changes to their FOIA programs since last March to continue to effectively administer the FOIA in the current environment.  This has also been a topic of continued interest for the Chief FOIA Officers (CFO) Council Technology Committee.  OIP, OGIS, and the CFO Council Technology Committee invite agencies to join us for these upcoming opportunities to discuss current challenges and to learn successful strategies agencies have implemented to adjust to the workplace challenges associated with the pandemic.     

FOIA programs in the Intelligence Community are confronted with some of the biggest challenges in this area, which is why we are very pleased to focus our first workshop on March 11 (1pm – 3pm), on best practices specific to the Intelligence Community.  

Following this event, on March 30 (1pm - 3pm), a second workshop will be held on this topic featuring a broad panel of experts from a diverse group of agencies, including small, medium, and large agencies.

Both workshops are open to all agency FOIA professionals and interested personnel.  Registration is required for attendance.  Government employees must use their government email address to register for the event through Eventbrite.  

Read more here.

FOIA News: GAO's Michelle Sager on Fed News Network

Agencies increasingly turning down FOIA requests

By Tom Temin, Federal News Network, Feb. 24, 2021

Freedom of Information Act requests are on the rise. Rising faster are instances of federal agencies turning them down. Turns out, they’ve got quite a few perfectly legal reasons for stamping “Sorry, no dice” on FOIA requests. For a review, Federal Drive with Tom Temin turned to the Director of Strategic Issues at the Government Accountability Office, Michelle Sager.

Read more here.

FOIA News: DOJ-OIP Announces Sunshine Week Kick-Off

Department of Justice Sunshine Week Virtual 2021 Celebration

Dep’t of Justice, Office of Info. Pol’y, FOIA Blog (Feb. 24, 2021)

We invite you to join the Department of Justice for this year’s kick-off of Sunshine Week. On Monday, March 15 from 10am – 11am, the Department of Justice will hold our annual Sunshine Week event virtually. Established in 2010, this will mark the eleventh year of the Department’s event recognizing the importance of FOIA for government transparency and celebrating the efforts of those professionals dedicated to the success of their agencies’ FOIA administration. We invite all agency personnel and members of the public to join us for this year’s event, which will include an address from the Director of the Office of Information Policy highlighting recent initiatives and agency FOIA activities, as well as the Department’s annual Sunshine Week FOIA Awards Ceremony to honor and celebrate the work of dedicated FOIA professionals across the government.

Read more here.

Court opinion issued Feb. 23, 2021

Cause of Action Inst. v. Export-Import Bank (D.D.C.) — following in camera review, (1) affirming an agency’s use of the deliberative-process privilege to withhold certain internal records, such as property risk-management reports and communications with the Executive Office of the President about political nominees; (2) rejecting the use of the deliberative-process privilege to withhold portions of senior staff reports and materials provided to GAO; (3) rejecting the use of the deliberative-process and attorney-client communication privileges to withhold an internal email concerning the requester’s blog activity; (4) affirming the use of Exemption 6 to withhold White House email addresses; (5) remanding the majority of records to the agency for renewed motion on summary judgment, including portions of an email chain withheld as “non-agency records,” other records provided to GAO, and cybersecurity recommendations; (6) postponing consideration of the agency’s Exemption 4 claims; and (7) warning agency that in camera review called into question “whether the Bank has adequately complied with FOIA’s segregability mandate,” and otherwise highlighting multiple times the agency’s failure to account for records in its Vaughn index and its inaccurate description of records in its submissions.

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

Court opinion issued Feb. 22, 2021

Gellman v. DHS (D,D.C.) -- in case involving plaintiff’s request for records about himself, finding on renewed summary judgment that: (1) Office of the Director of National Intelligence properly relied on Exemption 5’s deliberative process privilege to redact records and noting that agency was not required to disprove that redacted language was not later adopted as agency policy; (2) Office of Information Policy properly withheld draft statements to the media pursuant to Exemption 5, as well as email from public affairs official about how to respond to news article; and (3) OIP properly withheld certain news clips as “unresponsive” to plaintiff’s request even though they were were contained in compilations that included responsive items.

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

FOIA News: Orgs ask Biden to prioritize transparency

Groups press Biden to commit to transparency

Their letter asks the new president to reinvigorate FOIA and rein in government secrecy.

By Josh Gerstein, Politico, Feb. 22, 2021

On President Barack Obama’s first full day in office, he issued an executive order and two presidential memoranda urging greater transparency in government.

When President Joe Biden was sworn in last month, he signed 17 executive orders and other directives. None was focused on transparency.

Now, a coalition of advocates for more access to government information and deliberations are urging Biden to make such openness a higher priority and to reverse what they contend was a deterioration in public access to the inner workings of government under former President Donald Trump.

Read more here.

FOIA News: Attorney General nominee refers to FOIA in hearing testimony

Merrick Garland, the nominee for U.S. Attorney General, stated in his opening testimony before the Senate Judiciary Committee that reading “the Freedom of Information Act generously” would be one of many norms “that will ensure the Department’s adherence to the Rule of Law.”

FOIA News: Two more cabinet agencies post annual reports

The Department of Housing and Urban Development has posted its 2020 annual FOIA report here.

The Department of Agriculture has posted its 2020 annual FOIA report here.