FOIA News: D.C. Circuit hears argument about withheld NSA memo

On March 18, 2021, the U.S. Court of Appeals for the District of Columbia Circuit heard oral argument in The Protect Democracy Project v. U.S. National Security Agency, a case in which appellant seeks access to communications between NSA and the Executive Office of the President regarding Russian interference with the 2016 presidential election. The lower court held that NSA properly withheld a disputed memorandum pursuant to Exemption 5’s presidential communications privilege.

FOIA News: ICYMI, OIP updates Ex. 1 of FOIA Guide

On March 4, 2021, the Department of Justice’s Office of Information Policy posted an updated version of section Exemption 1 of the Guide to the Freedom of Information Act. All of the remaining Guide sections have been updated as of 2019 or 2020.

Court opinions issued Mar. 19, 2021

A.B. v. DOJ (D.D.C.) -- ruling that DOJ properly relied on Exemption 5’s deliberative process privilege to withhold communications between the Attorney General’s office and the Office of Legal Counsel regarding her asylum case.

Mullane v. DOJ (D. Mass.) -- deciding that: (1) Executive Office for United States Attorneys and the Securities and Exchange Commission performed adequate searches for records pertaining to plaintiff, whose legal internships were terminated and rescinded by EOUSA and SEC, respectively, due to an incident with a federal judge; (2) EOUSA properly withheld records pursuant to Exemption 5’s attorney-client and attorney work-product privileges, and it properly withheld unsigned draft records pursuant to the deliberative process privilege; the agency improperly withheld email with University of Miami, however, and failed to adequately explain other deliberative process privilege claims; (3) both agencies properly redacted records pursuant to Exemption 6, which plaintiff did not dispute.

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

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.

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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.