FOIA News: Two Exemption 5 decisions analyzed

Supreme Court and Ninth Circuit Limit Reach of Freedom of Information Act

By Marc Bruner, Perkins Coie, JD Supra, Mar. 19, 2021

The Freedom of Information Act requires that federal agencies make records available to the public upon request, unless the records fall within one of nine exemptions. “Exemption 5” covers inter-agency or intra-agency communications that would be privileged in civil litigation, including under the attorney-client, work product or deliberative process privilege. 5 U.S.C. § 552(b)(5). In two recent rulings, the U.S. Supreme Court and the U.S. Court of Appeals for the Ninth Circuit shored up the grounds for invoking Exemption 5 and for withholding documents from public disclosure under the FOIA statute.

Read more here.

Court opinions issued Mar. 18, 2021

Powell v. IRS (D.D.C.) -- on renewed summary judgment, finding that IRS performed adequate supplemental search for records pertaining to plaintiff.

Legal Eagle, LLC v. Nat'l Sec. Council Records Access (D.D.C.) -- ruling that: (1) National Security Council and its components were not agencies subject to plaintiff’s FOIA request, which sought records related to prepublication review of John Bolton’s book, The Room Where It Happened; (2) multiple federal agencies properly denied plaintiff’s request for expedited processing because plaintiff failed to demonstrate why requested records were time sensitive.

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

FOIA News: Senators seek to protect federal FOIA requesters from retaliation

Leahy Introduces Federal Employee Access To Information Act To Protect Federal Employees From Retaliation For Filing FOIA Requests

Press Release, Office of Sen. Patrick Leahy, Mar. 18, 2021

Senator Patrick Leahy (D-Vt.), along with Representatives Carolyn B. Maloney (D-N.Y.) and Gerald E. Connolly (D-Va.), Thursday introduced the Federal Employee Access to Information Act to ensure that federal employees are able to use the nation’s premier transparency law, the Freedom of Information Act (FOIA), without reprisal.  

Read more here.

FOIA News: GAO blogs about FOIA

Freedom of Information Act—How Open is Public Access to Government Data?

By Michelle Sager, GAO, Mar. 18, 2021

The Freedom of Information Act (FOIA) establishes a legal right for individuals and organizations to request access to government information. In FY 2019, federal agencies reported that they processed nearly 878,000 FOIA requests for government information, an increase of 32% since FY 2012.  

In honor of Sunshine Week—an annual observation that promotes open government—today’s WatchBlog post looks at our recent reports on agencies’ implementation of laws that seek to improve the public’s access to government information.

Read more here.

Q&A: And I’ve been waiting such a long time

Q. After filing a request for review with the Illinois Attorney General's Office, due to what I believed were unlawful redactions to a FOIA request, the AG agreed and determined that the Chicago government body improperly withheld certain information. It has been nearly four months since the AG's determination and yet the government body still refuses to provide the sought information. Is there any recourse that will not cost me a small fortune in attorney fees?

A. If the Attorney General’s Public Access Counselor has issued an opinion ordering a public agency to produce records, the public agency may appeal the opinion to the circuit court. If the public agency does not appeal the opinion and fails to disclose the records as ordered by the opinion, the Attorney General’s office may sue the public agency to enforce the opinion. Thus, you might wish to notify the Attorney General’s office of the status of your request.

Court opinions issued Mar. 17, 2021

Moeller v. EEOC (D.D.C.) -- deciding that: (1) agency failed to demonstrate that it performed reasonable search for certain records concerning employment advertisements, and (2) agency failed to adequately support its withholding claims under Exemption 5, 6, and 7(C), and failed to articulate “a specific foreseeable harm that is adequately connected to the underlying materials.”

Watkins Law & Advocacy v. DOJ (D.D.C.) -- ruling on renewed summary judgment that: (1) DOJ adequately performed supplemental search for communications and agreements with the Department of Veterans Affairs regarding persons prohibited from purchasing firearms; (2) DOJ improperly withheld portions of two congressional reports as “non-responsive,” but rejecting plaintiff’s APA claim challenging validity of DOJ’s guidance on definition of a record; and (3) DOJ properly withheld memorandum pursuant to Exemption 5’s deliberative process privilege.

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

FOIA News: Gov Exec on FY 2020 Data and Request for GAO to Review Impact of Pandemic on FOIA

Coronavirus Roundup: More Feds Are Eligible for Vaccines; Calls to Review FOIA During Pandemic

By Courtney Buble, Government Executive, Mar. 17, 2021

According to an analysis by Allan Blutstein, founder of the noncommercial forum FOIA Advisor, in fiscal 2020––the year upended by the pandemic–– agencies received 7.9% fewer FOIA requests and processed 12% fewer than in fiscal 2019. The analysis, shared with Government Executive, also found that unfulfilled requests increased 9.6%, backlogged requests increased 17.4%, the average time to process a “simple request” decreased 17.9%, and agency processing and litigation costs increased by 13.8% and 10.9%, respectively.

….

In other FOIA-related news, a group of bipartisan senators on the Senate Judiciary Committee asked the Government Accountability Office on Monday to review how the pandemic has impacted agencies’ compliance with Freedom of Information Act requests.

Read more here.

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.