FOIA News: OIP updates reporting guidance and deadlines

ANNOUNCING UPDATED QUARTERLY AND ANNUAL FOIA REPORTING GUIDANCE AND DEADLINES

By DOJ/OIP, FOIA Post, Oct. 4, 2021

Today, the Office of Information Policy (OIP) posted updated guidance pertaining to Quarterly and Annual Reports, along with deadlines for the submission of agencies' Fiscal Year 2021 Annual FOIA Reports, Fiscal Year 2022 Quarterly FOIA Reports, and 2022 Chief FOIA Officer Reports.  These three reports serve a vital role in illustrating the steps taken and the progress made by agencies in administering the FOIA, and provide valuable information about how agencies promote efficiency, make more information available proactively, and use technology to improve FOIA administration.

Read more here.

FOIA News: FOIA Officer Council issues white paper on FOIA searches

By Eric White, Fed. News Network, Oct. 4, 2021

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Agency Freedom of Information Act offices said email searches remain a challenge keeping up with the volume of FOIA requests. The FOIA Officer Council’s Technology Committee, in a recent white paper, finds a wide variety of tools and strategies agencies use to conduct FOIA searches. The report also finds a major gap between public expectations for FOIA requests, and how quickly agencies can search their records.

Court opinions issued Sept. 30, 2021

N.Y Times v. HHS (2nd Cir.) -- affirming district court’s decision that Indian Health Service improperly withheld a third-party’s report evaluating agency’s management and administration as a “medical quality assurance record” under 25 U.S.C. § 1675.

Kowal v. DOJ (D.D.C.) -- on renewed summary judgment, finding that FBI’s Vaughn indices were adequate and that FBI properly withheld records concerning plaintiff’s capital defendant client pursuant to Exemptions 3 in conjunction with 18 U.S.C. § 3510), 6, 7(C), 7(D), and 7(E).

Citizens For Responsibility & Ethics In Wash. v. DOJ (D.D.C.) -- concluding that Federal Bureau of Prisons properly withheld records concerning its procurement of drugs used in federal executions, but that it could not withhold records pursuant to Exemption 7(E) because the exemption does not cover punishment phase of law enforcement.

Perioperative Servs. & Logistics v. U.S. Dep't of Veterans Affairs (D.D.C.) -- holding that agency properly relied on Exemption 6 to withhold records identifying a third party who filed a complaint against plaintiff.

Wash. Post v. SIGAR (D.D.C.) -- on renewed summary judgment, determining that: (1) agency properly relied on Exemption 1 to withhold records of interviews concerning agency’s “Lessons Learned Program”; (2) agency properly used Exemption 7(D) to withhold records identifying individuals who spoke “off the record,” but it could not use the exemption for “on the record” interviews; (3) agency properly relied on Exemptions 6 and 7(C) to withhold identifying information of various interviewees and third parties named in interviews; (4) agency properly withheld information on intelligence methods pursuant to Exemption in conjunction with the National Security Act; and (5) agency failed to justify ifs withholdings under Exemption 5’s deliberative process privilege, and it justified some but not all of its withholdings under the presidential communications privilege.

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

FOIA News: OIP issues guidance for 2022 CFO reports

NEW 2022 CHIEF FOIA OFFICER REPORT GUIDELINES NOW AVAILABLE

By DOJ/OIP, FOIA Post, Sept. 30, 2021

The FOIA requires agency Chief FOIA Officers to report to the Attorney General on their performance in implementing the law.  Accordingly, since 2009, the Department of Justice has directed agency Chief FOIA Officers to “review all aspects of their agencies’ FOIA administration” and to report annually to the Department of Justice on the efforts undertaken “to improve FOIA operations and facilitate information disclosure at their agencies.”  Every year, OIP provides specific guidance to agencies on the content and timing of agency Chief FOIA Officer Reports and today we have issued the guidelines for agency 2022 Chief FOIA Officer Reports.

Read more here.

Court opinion issued Sept. 29, 2021

Byrnes v. DOJ (D.D.C.) -- determining that: (1) Drug Enforcement Administration did not perform adequate search for records pertaining to plaintiff, a private attorney who represented DEA employees in litigation against DEA; and (2) agency did not demonstrate that names of DEA attorneys were protected from disclosure under Exemption 6.

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

Court opinion issued Sept. 28, 2021

Amiri v. Nat'l Sci. Found. (D.D.C.) -- finding that; (1) NSF conducted adequate search for records concerning plaintiff and a grant he worked on; and (2) NSF properly withheld records pursuant to Exemption 5’s deliberative process privilege and Exemption 6, noting that agency’s inadvertent disclosure of certain unredacted pages did not waive agency’s right to use Exemption 6 to protect other material.

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

FOIA News: OIP Announces Upcoming FOIA Trainings for Federal Government Employees

OIP ANNOUNCES FOIA TRAININGS FOR FISCAL YEAR 2022

September 29, 2021

Today, the Office of Information Policy (OIP) announces new dates for FOIA training during the beginning of Fiscal Year 2022.  As part of its responsibility to encourage agency compliance with the FOIA, OIP offers a number of training opportunities throughout the year for agency FOIA professionals and individuals with FOIA responsibilities.  These courses have been designed to offer training opportunities for personnel from all stages of the FOIA workforce, from new hires to the experienced FOIA professionals or FOIA managers. Due to COVID-19 and physical distancing precautions, OIP will continue to offer virtual training sessions that will be taught in real-time by OIP instructors.  We will announce more training opportunities for the spring at a later date.  As Fiscal Year 2022 quickly approaches, we are pleased to announce these virtual training courses, which are also available on OIP’s Eventbrite page.

The courses and dates scheduled so far for Fiscal Year 2022 are:

Virtual Annual FOIA Report Refresher and Quarterly Report Training
October 5, 2021

Virtual Chief FOIA Officer Report Refresher Training
October 19, 2021

Virtual Introduction to the Freedom of Information Act
November 9, 2021

Virtual Freedom of Information Act Litigation Seminar
November 10, 2021

Virtual Procedural Requirements and Fees Training
December 7, 2021

Virtual Exemption 1 and Exemption 7 Training
January 11, 2022

Virtual Exemption 4 and Exemption 5 Training
January 18, 2022

Virtual Privacy Considerations Training
January 20, 2022

Virtual Advanced Freedom of Information Act Training
February 2, 2022

Training courses are open to all federal government employees.  Descriptions of each course are available on Eventbrite and the Training page of OIP's site.  OIP manages all training registration through Eventbrite.  Registration will open one month prior to the date of the training.  Once the registration period begins, you may register by providing your name and email address on OIP’s Eventbrite page for that course.  Each attendee must register separately using their own government email address.  Please note that these training sessions are open to government personnel and contractors only.  Once you are registered, you will be sent a confirmation email from Eventbrite. 

OIP is also always available to provide individualized training sessions to any interested agency, which can be tailored to fit training needs.

For questions or more information regarding any of OIP’s training opportunities, please contact OIP’s Training Coordinator at DOJ.OIP.FOIA@usdoj.gov.

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The above blog post can be found in its original form here.

FOIA News: OIP Releases New Guidance on Exemption 5 and the Deliberative Process Privilege

NEW GUIDANCE ON EXEMPTION 5 OF THE FOIA AND THE DELIBERATIVE PROCESS PRIVILEGE

September 29, 2021, DOJ Office of Information Policy

Today, the Office of Information Policy (OIP) issued guidance addressing the Supreme Court decision in United States Fish & Wildlife Service v. Sierra Club, Inc., 141 S. Ct. 777 (2021).  While the Court's decision did not introduce new factors or considerations that would govern the application of Exemption 5, as the guidance highlights, it did underscore some important principles that agencies should consider in their application of the deliberative process privilege.

OIP’s guidance contains a brief discussion of the decision in United States Fish & Wildlife Service v. Sierra Club and highlights two key principles from the opinion when applying the deliberative process privilege.  Agencies may contact OIP’s FOIA Counselor Service with any questions regarding this guidance article or any other FOIA matter.  The Exemption 5 guidance can be found on OIP’s website where previously released policy guidance articles are also available.

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The above press release can be found in its original form here.

The guidance can be accessed here.

FOIA News: OIP seeks feedback on FOIA website

OIP SEEKS YOUR PARTICIPATION TO ENHANCE FOIA.GOV WITH NEW FEATURES SUCH AS A GUIDED USER EXPERIENCE

By DOJ/OIP, FOIA Post, Sept. 29, 2021

Since 2010, OIP has worked to launch and maintain a comprehensive government-wide and central Freedom of Information Act (FOIA) website, FOIA.gov.  Over the years, OIP has continued to improve the site with new features and functionality.  In March 2018, OIP launched the  National FOIA Portal on FOIA.gov, which for the first time allowed the public to submit requests directly to agencies from the site.  Since then, OIP has continued to engage extensively with both public and agency stakeholders to further develop the capabilities of the National FOIA Portal and FOIA.gov. 

Today, OIP is pleased to announce its second collaboration with GSA’s 18F team to examine the next phase of development for FOIA.gov with features like a guided user experience or the ability to check the status of requests.  OIP seeks both agency and public user feedback to help improve the overall experience on FOIA.gov through such features.  Your participation will involve interviewing with the 18F team regarding your experience using FOIA.gov.  Volunteers do not need prior experience submitting FOIA requests to participate.  

If you are interested in participating, please email OIP at National.FOIAPortal@usdoj.gov as soon as possible, but no later than October 15, 2021.      

FOIA News: Fed chair will “think about” extending FOIA and FRA to federal regional banks

During a hearing before the Senate Banking Committee on September 28, 2021, Senator Steve Daines of Montana asked the Chairman of the Federal Reserve, Jerome Powell, whether regional banks should be subject to the Freedom of Information Act and the Federal Records Act.

Q. Chairman Powell, earlier this month in response to the revelations about securities trading by presence of Fed regional banks, you began to review the ethics and transparency rules across the Fed because, and I quote, “The trust of the American people is essential for the Federal Reserve to effectively carry out our important mission.” The Fed Board of Governors is subject to FOIA and the Federal Records Act, but the Fed regional banks currently are not. Would you support making Fed regional banks subject to FOIA and the Federal Records Act to ensure greater public transparency and trust in the Fed?

A. Senator, that’s a good question. I’d like the chance to think about it and come back to you. I would want to reflect on that and on the reasons why they’re not subject to it, and I will do that.