Court opinion issued Oct. 13, 2021

Friends of Animals v. U.S. Fish & Wildlife Serv. (10th Cir.) -- affirming in part and reversing in part district court’s decision and holding that: (1) agency properly relied on Exemption 7(C) to withhold names of individuals importing African giraffe parts or products; (2) Exemption 7(C) did not protect names of individuals importing African elephant skins and parts because names were publicly available elsewhere and prospect of harassment was “primarily speculative”; and (3) agency could not sustain its Exemption 4 withholdings using agency affidavit containing inadmissible hearsay.statements. A partial dissent argued that the majority undervalued the privacy interests of elephant importers and overvalued the public interests at stake.

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

FOIA News: NY Times on the death of Russ Kick

Russ Kick, ‘Rogue Transparency Activist,’ Is Dead at 52

Working on his own, he used the Freedom of Information Act to publish suppressed documents, sometimes making front-page news.

By Katherine Q. Seelye, NY Times, Oct. 14, 2021

On the eve of the American-led invasion of Iraq in March 2003, the Pentagon banned media coverage of the return of the remains of dead soldiers to Dover Air Force Base in Delaware.

By November, as the death toll rose, Russ Kick, a self-taught expert at digging up information, filed a request under the Freedom of Information Act for all the images of coffins arriving at Dover since the war began.

Read more here.

FOIA News: D.C. Circuit hears FOIA argument

The United States Court of Appeals for the District of Columbia Circuit heard oral argument on Wednesday in Electronic Privacy Info. Ctr. v. DOJ, No. 20-5364, which concerns access to portions of the Mueller Report that discuss the special counsel’s reasons for not charging certain individuals.

Q&A: Fish out of water!?

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?

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

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"

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

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.

Court opinion issued Oct. 2, 2021

Stalcup v. DOD (D. Mass.) -- approving and adopting magistrate judge’s report and recommendation finding that DOD’s Missile Defense Agency and its Joint Staff performed adequate searches concerning TWA Flight 800, and that the Office of the Secretary of Defense did not conduct an adequate search.

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

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

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).