FOIA News: OIP highlights recent SCOTUS decision, notes forthcoming guidance

Supreme Court Opinion Issues in FOIA Exemption 5 Case

Dep’t of Justice, Office of Info. Pol’y, FOIA Post, Mar. 4, 2021

Today the Supreme Court issued its opinion in United States Fish & Wildlife Service v. Sierra Club, 592 U.S. ___ (2021), holding that “[t]he deliberative process privilege protects from disclosure under FOIA in-house draft biological opinions that are both predecisional and deliberative, even if the drafts reflect the agencies’ last views about a proposal.”  The Court’s opinion can be found here.  

As with prior Supreme Court decisions and significant FOIA developments, the Office of Information Policy (OIP) will issue guidance and provide training on the impact of this decision.  In the meantime, agencies are always welcome to seek advice through OIP’s FOIA Counselor Service.

FOIA News: OIP releases 2020 Litigation and Compliance Report

2020 FOIA Litigation and Compliance Report Now Available

Dep’t of Justice, Office of Info. Pol’y, FOIA Post, Mar. 4, 2021

This week, the Office of Information Policy (OIP) posted the Department’s 2020 FOIA Litigation and Compliance Report.  In accordance with the FOIA, each year the Department of Justice submits to Congress and the President a report detailing our efforts to encourage agency compliance with the FOIA.  The report also contains a listing of all FOIA litigation cases received and decided in the prior calendar year.  The report highlights the many ways that OIP works to provide guidance, trainings, and counseling to agencies to assist them in their FOIA administration and to promote agency accountability.      

Read more here.

Read the report here.

FOIA News: Gov't decisively wins Exemption 5 SCOTUS case

In Barrett’s first majority opinion, court sides with government in FOIA dispute

By James Romoser, SCOTUSblog, Mar 4, 2021

The federal government does not have to fully disclose certain draft regulatory documents under the Freedom of Information Act, even if those documents reflect an agency’s final view about a policy proposal that it later abandons, the Supreme Court ruled Thursday. Justice Amy Coney Barrett wrote the opinion, her first majority opinion since joining the court in October.

The court sided 7-2 against the Sierra Club, which filed a FOIA request for “draft biological opinions” that environmental officials produced in 2013. Those opinions analyzed potential threats to endangered species from a proposed rule on underwater structures used to cool down industrial machinery.

Read more here.

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.