Court opinions issued March 2, 2021

Rojas v. FAA (9th Cir.) (en banc) -- holding that: (1) “consultant corollary” doctrine applied to documents prepared for agency by outside consulting firm and affirming district court’s decision that two of three disputed documents were protected by Exemption 5’s attorney work-product privilege; (2) agreeing with three-judge panel that FAA was not required to search outside consultant’s files and that agency did not adequately justify the adequacy of search of its own files.

Sabra v. U.S Customs & Border Prot. (D.D.C.) -- ruling that plaintiff was not entitled to any declaratory or injunctive relief where agency failed to meet statute’s response deadlines, and deferring decision as to whether agency performed adequate search or properly withheld records.

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

FOIA News: "FOIA.gov" updated with FY 2020 data

NEW ANNUAL FOIA REPORT DATA PAGE AND AGENCIES' FISCAL YEAR 2020 DATA NOW AVAILABLE ON FOIA.GOV

By DOJ/OIP, FOIA Post, Mar. 2, 2021

The Office for Information Policy (OIP) is pleased to announce that it has recently upgraded the Annual Report Data page on FOIA.gov.  Since its initial launch in 2011, FOIA.gov has served as a dashboard of all agencies' Annual FOIA Report data.  Each year, federal departments and agencies are required by law to submit a report to the Attorney General detailing various statistics regarding their agency’s FOIA activities, such as the numbers of requests processed and received, and the time taken to process them.  The data from all of these Annual FOIA Reports is then published on FOIA.gov, the Justice Department’s government-wide FOIA resource, so that the public can easily view it and compare FOIA data by agency and over time.

Read more here.

FOIA News: DOJ posts annual report; DHS backlog plummets

The Department of Justice belatedly posted its fiscal year 2020 annual report on Tuesday, or perhaps well after business hours on Monday. Of note, DOJ reported that it received nearly 9 percent fewer requests, its request backlog increased 17 percent, and its total FOIA costs topped $100 million for this first time.

Although DHS has not posted its annual report, data available on FOIA.gov indicates that the department reduced its backlog of requests from 53,971 to 31,454, a whopping 42 percent improvement.

FOIA News: More annual reports posted; DOJ’s still pending

• Health & Human Serv.: HHS received 36,825 requests in FY 2020 versus 35,358 in FY 2019, about a 4 percent increase. Its backlog of requests increased from 7764 to 8817, or 13.5 percent.

• Labor: DOL received 15,820 requests in FY 2020 versus 16,259 in FY 2019, less than a 3 percent decrease. Its backlog of requests increased from 1509 to 1714, or 13.5 percent.

DOJ has posted a list of all annual reports that are available here. As of 6:00PM on March 1st, neither Justice, Homeland Security, Energy nor Treasury had posted their FY 2020 reports.

FOIA News: Government Watchdogs on Biden Administration Transparency

Biden won’t release White House virtual visitor logs

By Anita Kumar, Politico, Mar. 1, 2021

For dozens of good government groups on the left and right, simply not being Trump is not enough. They are now urging Biden to do more, including fixing the very problems in transparency laws that his predecessor’s actions showed need fixing. That includes answering public records requests more quickly; publishing Office of Legal Counsel opinions; revising classification policies; and releasing logs of virtual meetings and physical meetings at other locations where the president and his aides travel.

Read more here.

FOIA News: Deadline arrives for posting annual FOIA reports

Agencies must post their annual FOIA reports on their website on or before Monday, March 1, 2021. The cabinet agencies that have not yet posted their reports as of February 28, 2021, are HHS, DHS, Education, Energy, DOJ, Labor, and Treasury.

In case you missed them, the Defense Department and the State Department recently posted their annual reports. Each suffered double-digit percentage increases in their request backlogs: DOD’s backlog rose from 13198 to 16000 (or 21 percent); and State’s climbed from 11016 to 13798 (or 25 percent).

Court opinions issued Feb. 26, 2021

Sierra Club v. U.S. Fish & Wildlife (D.D.C.) -- rejecting agency’s deliberative process privilege claims, ordering release of final agency’s final scientific report pertaining to status of certain deer on endangered-species list, and permitting agency to renew its arguments for withholding draft reports and related commentary.

Citizens for Responsibility & Ethics in Wash. v. GSA (D.D.C.) -- ordering in camera review of certain communications pertaining to renovation of FBI headquarters that GSA had withheld under Exemptions 5 and 7(E), and requiring agency to file supplemental Vaughn Index addressing portion of those records.

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

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.