FOIA News: FBI deactivates records feed on Twitter

Court opinions issued Sept. 13, 2021

Prot. Democracy Proj. v. HHS (D.D.C.) -- on renewed summary judgment, finding that HHS properly relied on Exemption 5’s deliberative process privilege to withhold record related to agency’s discontinuation of advertising for healthcare.gov in 2017-2017, but ordering in camera review of remaining disputed records in order to determine whether certain factual material is deliberative or not readily segregable and to determine whether other information is pre-decisional or post-decisional.

Taylor v. IRS (D.D.C.) -- concluding that IRS performed reasonable searches for records pertaining to plaintiff’s requests and that agency released all responsive records in full.

Ameen v. U.S. Dep’t of State (D.D.C.) -- ruling that plaintiff was not precluded from filing suit pro se, because the underlying FOIA requests “(1) indicated that counsel was requesting the documents in connection with and for use in the representation of plaintiff, and (2) contained release forms signed by plaintiff ‘authoriz[ing] and request[ing]’ the release of records to counsel.”

Shaklee & Oliver, P.C. v. USCIS (W.D. Wash.) -- denying award of attorney’s fees in case involving plaintiff’s requests for his Alien files, because no judicial order, written agreement, or consent decree existed and USCIS provided “compelling reasons” for its delay in processing records; further deciding that plaintiff’s motion for attorney’s fees improperly included references to settlement discussions with USCIS.

Open Soc’y Justice Initiative v. CIA (S.D.N.Y) -- determining that CIA properly relied on Exemption 1 to withhold its 2018 report concerning death of Jamal Khashoggi, and denying plaintiff’s reconsideration motion that permitted government to submit a “no numbers, no list” response pursuant to Exemptions 1 and 3.

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

Court opinion issued Sept. 8, 2021

Savage v. Dep’t of the Navy (D.D.C.) -- ruling that: (1) agency properly relied on Exemption 7(C) to withhold names of third parties from investigative report concerning plaintiff’s racial discrimination complaints; and (2) agency did not meet its burden to show that its withholdings under the deliberative process privilege met statute’s foreseeable harm requirement.

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

FOIA News: Record collections of the 9/11 attacks

FBI

9/11 Commission

Fed. Aviation Admin.

Natl. Inst. of Standards & Tech.

George W. Bush Pres. Library

Library of Congress

9/11 Memorial & Museum

FOIA News: FOIA Advisory Committee meeting on Sept. 9, 2021

The FOIA Advisory Committee will meet on Thursday, September 9, 2021, from 10 a.m. to 1 p.m. The meeting agenda, live stream link, and presentation material are available here.

FOIA News: Cloud can help speed FOIA response

Cloud can help speed FOIA response

By Stephanie Kanowitz, GCN, Sept. 7, 2021

The backlog of Freedom of Information Act (FOIA) requests has grown during the pandemic. The Justice Department reports that the number of backlogged requests across federal agencies in fiscal 2020 was 141,762, compared to about 120,000 the year before. The disparate systems that shaped agencies’ quick shift from office to remote work is largely to blame, one expert says.

“In many cases the data that they’re receiving, generating [and] creating is remaining local to the employees instead of on an enterprise system,” said Bill Tolson, vice president of compliance and e-discovery at Archive 360. That makes it difficult for an agency to respond to a FOIA request that involves numerous agency employees with disparate data repositories. “We’ve found instances where many of the employees were storing agency material up in their personal cloud accounts because they had nowhere else to put it.”

Read more here.

Court opinions issued Sept. 2-3, 2021

Sept. 3, 2021

Jordan v. DOJ (D.D.C.) -- ruling, in most relevant part, that: (1) EOUSA performed adequate search for records concerning plaintiff’s prior FOIA litigation with the Department of Labor; (2) collateral estoppel barred plaintiff from re-litigating government’s use of Exemption 4 to withhold certain email; (3) EOUSA properly withheld records pursuant to Exemption 5’s work-product and deliberative process privileges, as well as Exemption 6, except for certain contact information that was publicly available.

Sept. 2, 2021

Long v. ICE (D.D.C.) -- finding that ICE was not required to produce various fields of data pertaining to immigration removals because such production would require the creation of new records, not merely sorting a preexisting database of information.

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

FOIA News: OIP updates FOIA Guide

On August 20, 2021, the Department of Justice’s Office of Information Policy posted an updated version of the Procedural Requirements section of the Guide to the Freedom of Information Act.

FOIA News: OGIS assessment of first-party requests

On August 30, 2021, the Office of Government Information Services released an assessment of “common categories of records requested frequently under the FOIA and/or Privacy Act by – or on behalf of – individuals seeking records about themselves.” In sum, OGIS recommended that agencies “examine closely all of the records that they generate, collect and/or maintain and seek creative ways to provide non-FOIA access to first-party records when possible.” It also recommended that “agencies use their websites to explain, in plain language, the steps requesters should take to obtain access to first-party records.”

FOIA News: Reporters Committee on Recent DC Circuit Decisions

DC Circuit issues two notable FOIA decisions

By Gabe Rottman, Reporters Committee for Freedom of the Press, Aug. 30, 2021

Last week, the U.S. Court of Appeals for the District of Columbia Circuit issued decisions in two cases involving the government’s withholding of records or information under the Freedom of Information Act. While the government’s asserted rationale for withholding in each of the two cases differed, in both instances the appellate court affirmed holdings in the U.S. District Court for the District of Columbia finding that the information in question could be withheld.

In the first of the decisions, issued last Tuesday, the appellate court upheld the National Security Agency’s withholding of a 2017 memorandum memorializing a conversation between former President Donald Trump and NSA Director Michael Rogers in a FOIA lawsuit brought by Protect Democracy. The court found the memo properly withheld under the FOIA exemption incorporating executive privilege, and refused to recognize a “misconduct” exception advanced by plaintiffs.

Read more here.