FOIA News: Congressional leaders call on DOJ to issue FOIA memo

Lawmakers Press Garland on Access to Documents for Public, Congress

Teresa Mettela, Wall St. J., Feb. 23, 2022

WASHINGTON—A bipartisan group of lawmakers is urging Attorney General Merrick Garland to press federal agencies to emphasize transparency and openness when responding to Freedom of Information Act requests, after government reports showed an increase in denials in recent years.

The House oversight and Senate judiciary committees sent a letter to Mr. Garland asking him to issue a memorandum encouraging agencies to implement FOIA in a manner that will increase access to government documents for the public and Congress.

“A clear message from you that transparency is a priority would encourage agencies to fully comply with the law,” the lawmakers said.

Read more here.

A copy of the congressional letter is here.

Court opinion issued Feb. 22, 2022

Am. Civil Liberties Union Found. of N.H. v. U.S. Customs & Border Prot. (D.N.H.) -- ordering agency to file supplemental declaration addressing the scope of its search and why it found certain records to be non-responsive to plaintiff’s request, but ruling that agency’s original declaration and Vaughn Index provided court with sufficient information to evaluate agency’s segregability determinations.

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

Court opinion issued Feb. 17, 2022

Graham v. DHS (E.D. Cal.) -- holding that plaintiff’s claim was not time-barred when he filed suit exactly 6 years after ICE issued its second (and final) administrative appeal response, because —in the court's view -- the agency's timely-issued remand of plaintiff's first administrative appeal prevented plaintiff from exhausting his administrative remedies and thus delayed the accrual of his claim.

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

FOIA News: DOT is first cabinet department to release annual report

The U.S. Department of Transportation released its FY 2021 annual FOIA report on Thursday, February 17, 2022, twelve days ahead of DOJ’s deadline. No other cabinet department has released its annual report as of the time of this post.

FOIA News: More 2021 annual reports released

Last week we reported that several agencies had posted their 2021 annual FOIA reports in advance of DOJ’s March 1st deadline. Here are a few more reports that we have found online since then.

• Environmental Protection Agency

• U.S. Agency for International Development

• U.S. Merit Systems Protection Board

• U.S. Nuclear Regulatory Commission

• Administrative Conference of the United States

• National Indian Gaming Commission

• Surface Transportation Board

• Office of the Director of National Intelligence

• U.S. Commission on Civil Rights

Court opinions issued Feb. 11, 2022

Graham v. FBI (D.D.C.) -- granting summary judgment to government after finding that plaintiff failed to identify any public policy harms that would override criminal justice interests favoring enforcement of plaintiff’s voluntary waiver of FOIA rights in his plea agreement.

Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of State (D.D.C.) -- deciding that: (1) agency did not submit sufficient information to permit court to evaluate whether agency properly invoked Exemption 5’s deliberative process privilege to withhold two categories of records concerning its handling of requests from congressional committee chairs; and (2) agency improperly redacted “simple statistics” and other factual information from weekly report that did not fall within deliberative process privilege or meet foreseeable harm provision.

Saterlee v. IRS (W.D. Mo.) -- ruling that: (1) agency performed adequate search, except in one instance, for various certificate of assessments and notices of federal tax liens concerning plaintiff; (2) agency failed to prove that it properly withheld employee’s oath of office pursuant to Exemption 6, but it properly used same exemption to withhold other records from employee’s personnel file.

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

Court opinion issued Feb. 10, 2022

Stonehill v. DOJ (D.D.C.) -- in case involving investigatory records of plaintiff’s deceased husband’s business in the Philippines, concluding that: (1) Tax Division was permitted to amend its Answer to add res judicata defense, but rejecting agency’s defense on merits concerning request for “records from 1957-1976 concerning Mr. Stonehill”; (2) rejecting Tax Division’s res judicata defense to request concerning Philippine’s national bureau of investigations; (3) ordering agency to complete processing of request that it neglected for three years—which the court called “unacceptable”—and to justify any withholdings on renewed summary judgment; (4) Tax Division performed adequate search for records concerning government consultant, but finding agency’s earlier errors “troubling” and urging agency to take “greater care in the future”; (5) Tax Division properly relied on Exemptions 5, 6, and 7(C) to withhold some, but not all, records identified in the Tax Division’s opening brief and rejecting plaintiff’s assertion of government misconduct exception; and (6) Tax Division failed to justify its Exemption 5 withholdings for records located after it filed its opening brief and denying agency’s request to submit sampling Vaughn Index.

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

FOIA News: Fed Reserve should be subject to FOIA, says Senator Toomey

Top Republican Suggests Regional Fed Should Be Overhauled

• Toomey says status quo of regional banks is ‘unacceptable’

• He wants the Fed to be subject to public records request law

By Laura Davison, Bloomberg, Feb. 10, 2022

The top Republican on the Senate Banking Committee said Congress should weigh an overhaul of the U.S. Federal Reserve Regional Bank system and consider consolidating regional banks that are “wandering” into issues such as climate change.

Senator Pat Toomey of Pennsylvania said Thursday that the 12 regional banks were formed to manage the economies in their districts, but that largely ended in the 1930s as oversight was taken over by the central bank. That’s left the regional banks without a clear mandate, he said.

* * *

Toomey said he is also concerned that the Fed is not being transparent with the public and has been “stonewalling” congressional inquiries into bank decisions. He said lawmakers should consider making the Fed subject to the records request law, the Freedom of Information Act, like other federal entities are.

Read more here.

FOIA News: D.C. Circuit to hear FOIA case on Feb. 11, 2022

On Friday, February 11, 2022, the United States Court of Appeals for the District of Columbia Circuit will hear argument in the case Shapiro v. DOJ, No. 20-5318. Listen live to the argument before Judges Tatel, Wilkins, Rao here. A copy of the underlying decision at issue is here.

Court opinion issued Feb. 9, 2022

Smith v. EOUSA (S.D.N.Y.) -- determining that agency performed adequate search for records concerning plaintiff’s transfer between state and federal custody in 2011 and that it properly withheld grand jury records pursuant to Exemption 3 in conjunction with Federal Rule of Criminal Procedure 6(e).

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