FOIA News: Congressmen seek to expedite COVID FOIA requests

Reps Roy, Norman launch effort to bring transparency on COVID FOIA requests

Press Release, Office of Rep. Chip Roy, Dec. 17, 2021

On Thursday, Rep. Chip Roy (TX-21) and Rep. Ralph Norman (SC-05), joined by several of their House colleagues, introduced the Answer COVID FOIAs Now Act to require current outstanding COVID-related FOIA requests to be completed within 100 days. The introduction follows reports that the Public Health and Medical Professionals for Transparency (PHMPT) is suing the Food and Drug Administration (FDA) for failure to produce requested documents via FOIA and asking to have until 2097 to do so.

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This bill would ensure expedited processing of COVID-related FOIA requests.

COVID-related FOIAs are those that relate to:

• A drug or medical device to treat, prevent, or mitigate COVID-19;

• Gain-of-function or potential pandemic pathogen (P3) research;

• A policy, rule, or standard requiring vaccination of individuals.

If agency heads fail to complete the requests within 100 days, a penalty of $1 million would be taken from the office of the head of the federal agency and transferred to the Countermeasures Injury Compensation Program.

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Full text of the legislation is available at the link here.

See full press release here.

FOIA News: ICE defends withholding of docs on state judge who aided illegal alien

ICE Looks To Escape Suit Seeking Mass. Judge Docs

By Alyssa Aquino, Law360, Dec. 15, 2021

U.S. Immigration and Customs Enforcement urged a Massachusetts court to end litigation seeking records on a state court judge accused of helping an undocumented immigrant evade ICE custody, saying that certain sought-after documents would harm pending criminal proceedings if released. The agency said it has already released dozens of pages of information compiled during its investigation of Judge Shelley Richmond Joseph and court officer Wesley MacGregor, Judge Joseph's alleged accomplice. But the agency has claimed Exemption 7(A) of the Freedom of Information Act, which allows the government to shield information whose release could interfere with law enforcement proceedings, to withhold three. . .

Read more here (accessible with free trial subscription)

Court opinions issued Dec. 13, 2021

WP Co, v. SBA (D.D.C.) -- following multiple rounds of summary judgment motions, ruling that: (1) SBA properly relied on Exemption 4 to withhold loan status information of Paycheck Protection Program recipients, noting that SBA had asked loan recipients about their customary treatment of such information and established that disclosure would meet foreseeable harm standard; and (2) SBA properly withheld employer identification numbers of businesses under Exemption 6, because agency could not reasonably segregate them from social security numbers of individual borrowers.

Villanueva v. DOJ (S.D. Fla.) -- ordering FBI to process 20,500 pages of withheld documents responsive to plaintiff’s June 2018 FOIA request at a rate of 5,125 pages per month, rejecting government’s proposed rate of 500 pages per month.

Keeping Gov't Beholden. v. DOJ (D.D.C.) -- finding that: (1) two of plaintiff’s requests to FBI did not reasonably describe the records sought because those records could not be located with a reasonable amount of effort; and (2) FBI properly invoked Exemption 5’s deliberative process privilege to withhold certain emails of former FBI Director and met statute’s foreseeable harm provision under standards set forth by D.C. Circuit.

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

FOIA News: 2022 nominations open for worst open records responses

Have an Open Records Horror Story? Shine a Light by Nominating an Agency for The Foilies 2022

By Dave Maas, Elec. Frontier Found., Dec. 14, 2021

We are now accepting submissions for The Foilies 2022, the annual project to give tongue-in-cheek awards to the officials and institutions that behave badly—or ridiculously—when served with a request for public records.

Compiled by the Electronic Frontier Foundation (EFF) and MuckRock, The Foilies run as a cover feature in alternative newsweeklies across the U.S. during Sunshine Week (March 13-19, 2022), through a partnership with the Association of Alternative Newsmedia.

Read more here.

This article is crossposted at MuckRock and was co-written by Michael Morisy.

FOIA News: FDA offers to release 12k pages of vaccine data by end of January

We'll all be dead before FDA releases full COVID vaccine record, plaintiffs say

By Jenna Greene, Reuters, Dec. 13, 2021

In advance of a court hearing before a federal judge in Fort Worth, Texas, Tuesday, the Food and Drug Administration has offered by the end of January to make public 12,000 pages of data that it relied on to license Pfizer-BioNTech’s COVID-19 vaccine.

At first glance, that sounds like a lot of material.

Except a group of scientists and doctors who’ve sued the agency under the Freedom of Information Act is seeking an estimated 400,000-plus additional pages of information about the vaccine’s approval. Under the FDA’s proposed schedule – the agency pledges to release “a minimum” of 500 pages a month after the initial dump – the full trove might not be made public until the year 2097.

Read more here.

Court opinion issued Dec. 10, 2021

Judicial Watch v. DOJ (D.C. Cir.) -- reversing district court’s decision that DOJ properly withheld working draft statements of then-Attorney General Sally Yates under Exemption 5’s deliberative process privilege and holding that agency’s declaration neglected to address “the ‘who,’ i.e., the roles of the document drafters and recipients and their places in the chain of command; the ‘what,’ i.e., the nature of the withheld content; the ‘where,’ i.e., the stage within the broader deliberative process in which the withheld material operates; and the ‘how,’ i.e., the way in which the withheld material facilitated agency deliberation.”

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

Court opinions issued Dec. 9, 2021

Stevens v. U.S. Dep’t of State (7th Cir.) -- affirming district court’s decision that the agency performed adequate search for records concerning foreign campuses of American universities and that it properly withheld records pursuant to Exemptions 1, 3, and 5 (deliberative process privilege).

Matthews v. FBI (D.D.C.) -- following government’s multiple motions for summary judgment concerning plaintiff’s request for records about himself, deciding that: (1) FBI properly redacted identities of agency support personnel pursuant to Exemption 6; (2) agency did not provide sufficient information for court to determine that Exemptions 6 and 7(C) supported withholding of names and phone numbers of certain employees, as well as victim impact statements associated with plaintiff’s criminal prosecution; and (3) FBI justified its withholding of information about an informant under Exemption 7(D).

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

Court opinions issued Dec. 8, 2021

AquAlliance v. U.S. Bureau of Reclamation (D.D.C.) -- ruling that agency performed adequate search for summaries of certain 2020 water transfers; rejecting plaintiff’s argument that agency was also required to search for underlying data, because plaintiff expressly limited its request to summaries.

W. Watersheds Project v. Nat'l Park Serv. (D. Idaho) -- granting government’s motion to change venue to Utah notwithstanding plaintiff’s principal place of business in Idaho, because case primarily involves plaintiff’s FOIA requests for documents located in Utah and how agency employees in Utah responded to those requests.

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

Court opinion issued Dec. 7, 2021

Pickering v. DOJ (W.D.N.Y.) -- concluding that FBI performed reasonable search for records pertaining to convicted murderer Leonard Peltier and properly withheld records pursuant to Exemptions 3, 5 (attorney work-product), 6, 7(C), 7(D), and 7(E).

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

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

The Freedom of Information Act Advisory Committee will meet remotely on Thursday, December 9, 2021, from approximately 10am to 1pm. The meeting agenda is available here. A livestream link is here.