FOIA Advisor

Q&A: Fish out of water!?

Q&A (2015-2024)Allan BlutsteinComment

Q. If a federal government agency only holds records for 30 days yet for tax purposes contractors with that agency must hold those same records for 6 years, can I FOIA the contractor instead?

A. Only federal agencies are required to respond to FOIA requests, so the answer to your question is no. If the records you seek are maintained the contractor for the agency’s recordkeeping purposes, however, those records would be considered “agency records” and the agency would be required to process them. See DOJ/OIP, Treatment of Agency Records Maintained For an Agency By a Government Contractor for Purposes of Records Management, FOIA Post, July 2008.

FOIA News: Should Company Diversity Data be Protected under Ex. 4?

FOIA News (2015-2024)Allan BlutsteinComment

Op-Ed: Corporation Claims Diversity Data Is Secret. That’s A Problem for Journalism––and Democracy

By Victoria Baranetsky & Shawn Musgrave. Columbia Journalism Rev., Oct. 12, 2021

EARLIER THIS YEAR, Synopsys, Inc., a Silicon Valley-based technology company and federal contractor that produces computer chips and software, published its demographic diversity data on its website. The company’s “talent snapshot” for 2020 showed that just 1 percent of its overall employees in the United States were Black, 3 percent were Hispanic/Latinx, and just 23 percent of its global employees were women. That same company now claims in federal court that the raw numbers underneath these public percentages are a trade secret and thus exempt from government disclosure under the Freedom of Information Act (FOIA).

Read more here.

FOIA News: Technology Committee Publishes Paper on FOIA Searches

FOIA News (2015-2024)Kevin SchmidtComment

Technology Committee Publishes Paper on FOIA Searches

By Kirsten Mitchell, The FOIA Ombudsman, Oct. 8. 2021

There is a wide gap in public understanding of agencies’ abilities to search their electronic archives and databases for records responsive to FOIA requests and the reality of agencies’ capabilities, according to a new paper, “FOIA Searches: Key Challenges and Findings,” published by a working group of the Chief FOIA Officers Council’s Technology Committee. 

Other key findings of the FOIA Searches working group are that the strategies and tools federal agencies use to conduct searches vary greatly, and email searches remain a challenge for agencies. 

The paper also provides tips for requesters including searching FOIA Libraries and the web before submitting a FOIA request which could either negate the need for a request or help develop and scope a new one. 

Read more here.

P.S. See also DOJ/OIP’s October 1st article on FOIA Post.

FOIA News: "Saving the Freedom of Information Act"

FOIA News (2015-2024)Allan BlutsteinComment

University of Denver professor Margaret Kwoka has authored a new book entitled “Saving the Freedom of Information Act,” in which Professor Kwoka “proposes a series of structural solutions aimed at shrinking FOIA to re-center its oversight purposes.”

The National Archives and Records Administration will be airing a discussion about the book on its YouTube channel on November 18, 2021.

Court opinion issued Oct. 4, 2021

Court Opinions (2015-2024)Allan BlutsteinComment

Pitts v. DOJ (D.D.C.) -- deciding that: (1) Civil Rights Division performed adequate search for records concerning Jamar Clark’s death notwithstanding lack of details about agency’s search; and (2) agency properly withheld records pursuant to Exemption 5’s deliberative process and attorney work-product privileges and Exemption 7(C).

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

FOIA News: Commentary on D.C. Circuit’s research data decision

FOIA News (2015-2024)Allan BlutsteinComment

DC Circ.'s Exploratory Data Ruling Is A Win For Transparency

By Lawrence Ebner & David Kanter, Law 360, Oct. 5, 2021

When scientists employed by universities, nonprofit institutes or corporations publish scientific studies, they routinely make their underlying research data available to peer reviewers and anyone else who is interested. A recent U. S. Court of Appeals for the District of Columbia Circuit decision, Pavement Coatings Technology Council v. United States Geological Survey, confirms that federal government scientists should be no different. They cannot shield their published work from professional, industry or public criticism by invoking Freedom of Information Act Exemption 5 — the deliberative process privilege — as a reason for refusing to disclose their exploratory research data.

Read more here (accessible with free trial subscription).

FOIA News: OIP updates reporting guidance and deadlines

FOIA News (2015-2024)Allan BlutsteinComment

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

FOIA News (2015-2024)Allan BlutsteinComment

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

* * *

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

Court Opinions (2015-2024)Allan BlutsteinComment

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.