Court opinions issued Mar. 16, 2021

Rifle Remedies, LLC v. IRS (D. Colo.) -- finding that: (1) agency conducted adequate search for records pertaining to its audit of plaintiff and policy documents or guidance pertaining to marijuana vendors; and (2) agency properly withheld records pursuant to Exemption 3, in conjunction with 26 I.R.C. § 6103, and Exemptions 5, 7(A), 7(C), and 7(E).

DaVita Inc. v. HHS (D.D.C.) -- concluding that Centers for Medicare and Medicaid did not adequately explain how it performed certain aspects of its search for 36 public comments received in responsive to a rule proposed in 1990 and finalized in 1995.

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

FOIA News: GAO Report on Agency Compliance with Proactive Disclosure Requirements

Freedom of Information Act: Actions Needed to Improve Agency Compliance with Proactive Disclosure Requirements

Government Accountability Office, Mar. 17, 2021

The Freedom of Information Act requires federal agencies to provide public access to certain records and information without waiting for specific requests.

Only 1 of 3 agencies we studied had policies in place to address and document compliance with these proactive disclosure requirements. None of the 3 fully complied with requirements to track and report the number of records disclosed each fiscal year.

We made several recommendations to multiple agencies. For example, the Department of Justice should follow up with agencies that report making zero disclosures to help encourage agencies to make proactive disclosures as required.

Read more here.

FOIA News: Recap of DOJ's Sunshine Week event

DOJ'S SUNSHINE WEEK 2021 KICK-OFF AND ANNUAL FOIA AWARDS

DOJ/OIP, FOIA Post, Mar. 16, 2021

While the way in which attendees participated differed than in years past, the Office of Information Policy (OIP) celebrated its annual kick-off to Sunshine Week virtually on March 15, 2021.  The event featured remarks from the Attorney General, Acting Associate Attorney General, and OIP's Director, as well as the presentation of the 2021 Sunshine Week FOIA Awards.

The first entirely virtual DOJ Sunshine Week event began with a video message from Attorney General Merrick Garland.  On the very first day of his first full week in the Department, Attorney General Garland began his remarks by emphasizing that "[t]he principles of open government and democratic accountability are at the heart of who we are as public servants and as Americans.”  He further stated that "[w]ithout accountability, democracy is impossible.  And democratic accountability requires the kind of transparency that the FOIA makes possible.  That's why faithful administration of the FOIA is essential [to] American democracy." 

Read more here.

Court opinion issued Mar. 15, 2021

Hucul v. HHS (S.D. Cal.) -- granting summary judgment to government because plaintiff declined to oppose two of three requested items and because agency reasonably interpreted scope of plaintiff’s remaining request and performed adequate search for responsive records.

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

FOIA News: Senators seek to amend Exemption 4

Senators Grassley, Leahy, and Feinstein have introduced a bill, the Open and Responsive Government Act of 2020, that would restore Exemption 4’s substantial competitive harm test, which was nullified by the U.S. Supreme Court in 2019.

Read Senator Grassley’s press release here.

FOIA News: ICYMI, the worst FOIA responses of 2020

The Electronic Frontier Foundation and MuckRock News have announced the winners of the year’s worst public records responses in 2020. Enjoy the stories here.

FOIA News: Q&A with Interior's Deputy Chief FOIA Officer

Letting the Sun Shine on the FOIA

By Dep’t of the Interior, Blog, Mar. 15, 2021

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In the below Q&A, Deputy Chief Freedom of Information Act Officer Rachel Spector . . . discusses how FOIA works and why accountability matters.

Q: Happy Sunshine Week! Tell us what you do as a Deputy Chief Freedom of Information Act Officer (DCFO) for Interior.

A: In my role as DCFO, I run the Departmental FOIA Office (DFO), which was recently established to provide central governance and support to the FOIA offices in the Department’s component Bureaus/Offices. The DFO works with the FOIA Officers, who oversee the FOIA programs in their Bureaus/Offices, to develop effective policies and efficient best practices for FOIA request processing and engages with the FOIA Officers in collective problem-solving to identify, prioritize, and address the challenges they face. The DFO also works with Bureau/Office leadership to ensure that FOIA offices are sufficiently resourced. In addition, the DFO oversees the deployment of modern technology to facilitate efficient FOIA request tracking, case management, and processing, and provides targeted operational support to address large backlogs or complex issues.

Read more here.

FOIA News: U.S. Attorney General talks FOIA

Attorney General Merrick Garland provided the following remarks at DOJ’s virtual Sunshine Week event on March 15, 2021: https://youtu.be/OGRB22TZGbY.

FOIA News: Sunshine Week begins; FY 2020 FOIA stats

Happy Sunshine Week, which kicked off on Sunday, March 14, 2021. The National Archives and Records Administration will host a virtual celebration on Monday, March 15, 2021, from 1pm to 3pm. Watch the livestream on the National Archives’ YouTube Channel.

We have crunched the fiscal year 2020 FOIA data posted by the Department of Justice on FOIA.gov. Here are the highlights:

• Agencies received 790,772 requests, a 7.9 percent decrease from 2019 (858,952 requests).

• Agencies processed 772,952 requests, a 12 percent decrease from 2019 (877,964 requests).

• Unfulfilled requests climbed to 203,998, a 9.6 percent increase from 2019 (186,178 requests).

• Backlogged requests climbed to 141,794, a 17.4 percent increase from 2019 (120,796 requests).

• Average time to process “simple requests” was 32.28 days, a 17.9 percent improvement (39.30 days)

• Agency processing costs were $553,234,056.70, a 13.8 percent increase from 2019 ($486,194,199.50).

• Agency litigation costs were $42,913,963.52, a 10.9 percent increase from 2019 ($38,710,512.60).

• Fees collected from requesters totaled $2,113,456.41, a 17 percent decrease from 2019 ($2,547,638.48).

Note: Agency processing costs and litigation costs in 2020 are historic highs.

Court opinion issued Mar. 12, 2021

Citizens for Responsibility & Ethics in Wash. v. DHS (D.D.C.) -- concluding that Secret Service properly relied on Exemptions 7(E and 7(F) to withhold hotel room rates paid by the government to Trump resort in Scotland, as well as the estimated amount the Secret Service spent on meals and incidental expenses at the resort, because “releasing the requested data could help outsiders predict the size of future Secret Service details, which could render the Secret Service more vulnerable to circumvention and increase the risk of physical harm to agents and protectees alike.”

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