FOIA News: More on FOIA Advisory Committee's Glomar proposals

Shhh! Don’t Say Glomar Anymore

By Bernard Bell, Yale Journal on Regulations, Mar. 14, 2022

Summary: This post summarizes a report adopted by the FOIA Advisory Committee on March 10, 2022, regarding the use of a Glomar response to neither confirm nor deny the existence of records responsive to a FOIA request.

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The National Archives and Records Administration “established the Federal Freedom of Information Act (FOIA) Advisory Committee in 2014 to foster dialog between the Administration and the requester community, solicit public comments, and develop consensus recommendations for improving FOIA administration and proactive disclosures.” See Committee Home Page. The FOIA Advisory Committee commissioned its Classification Subcommittee to study the use of the Glomar doctrine and to make recommendations related to agency use of the Glomar doctrine.

The Subcommittee consisted of an academic, the co-chair of National Security Counselors (an ironically-named private transparency group), and the Associate General Counsel and Unit Chief of the FBI’s FOIA Litigation Unit.  The Subcommittee sought to conduct a survey of agency practices regarding invocation of the Glomar exception, which yielded only limited information due to the low agency response rate,[3] and ultimately produced a nine-page report dated March 1, 2022.  The full FOIA Advisory Committee adopted the report’s recommendations at its March 10, 2022 meeting.  Four Advisory Committee members voted against the report, and a fifth abstained.  See the FOIA Advisor Blog’s report on the meeting here; a recording of the meeting is accessible here.

Read the full article here.

FOIA News: Sunshine Week Proposal for a New FOIA Court

Creating a Freedom of Information court

By Ryan Mulvey and James Valvo, Americans for Prosperity Foundation, Mar. 14, 2022

One idea — which has rarely, if ever, been suggested — is the creation of a new federal court dedicated solely to hearing and deciding FOIA cases.

It goes without saying that FOIA’s judicial review provision needs some refurbishing. The volume of FOIA litigation nationwide has outpaced the ability of federal courts to deal with those cases in a timely manner. And most FOIA litigators and DOJ attorneys would agree that, quite apart from the increased volume of lawsuits, FOIA cases are often given the least attention of any on a district judge’s docket. To be sure, there are always exceptions; but few judges appear to enjoy, let alone dedicate much of their time and attention, to FOIA questions. This can have particularly significant consequences when courts decide novel questions about, say, the definition of a “record” or the complicated interaction of FOIA with other statutes.

A new Article III tribunal specializing in FOIA could have concurrent jurisdiction with the other federal courts already identified in the FOIA’s venue provision, thus allowing requesters a wider variety of potential fora in which to bring suit. The statute could direct that all appeals be heard by the D.C. Circuit. It may also be worth considering expanding the subject-matter jurisdiction of such a court to allow it to hear cases arising under other transparency statutes, such as the Privacy Act, Federal Records Act, and Presidential Records Act.

Read more here.

FOIA News: Senate hearing on records management

On March 15, 2022, the Senate’s Committee on Homeland Security and Governmental Affairs will hold a hearing entitled “Correcting the Public Record: Reforming Federal and Presidential Records Management.” Three witnesses will testify: (1) Jason R. Baron Professor of Practice, College of Information Studies, University of Maryland; (2) Anne Weismann, Outside Counsel for Citizens for Responsibility and Ethics in Washington and the Project on Government Oversight; and (3) Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law, The George Washington University Law School.

FOIA News: Awards announced for worst 2021 public records responses

The Foilies 2022

By Dave Mass et al., Elec. Frontier Found., Mar. 13, 2022

Each year during Sunshine Week (March 13-19), The Foilies serve up tongue-in-cheek "awards" for government agencies and assorted institutions that stand in the way of access to information. The Electronic Frontier Foundation and MuckRock combine forces to collect horror stories about Freedom of Information Act (FOIA) and state-level public records requests from journalists and transparency advocates across the United States and beyond. Our goal is to identify the most surreal document redactions, the most aggravating copy fees, the most outrageous retaliation attempts, and all the other ridicule-worthy attacks on the public's right to know.

Read more here.

FOIA News: Sunshine Week begins on March 13, 2022

Sunshine Week & Freedom of Information Day: March 13-19 & 16, 2022

U.S. Census Bureau, Mar. 13, 2022

According to Sunshineweek.org, “Sunshine Week was launched in 2005 by the American Society of News Editors — now News Leaders Association — and has grown into an enduring initiative to promote open government. Join News Leaders Association in the annual nationwide celebration of access to public information and what it means for you and your community. It’s your right to know.” 

Read more here.

Court opinion issued Mar. 11, 2022

Am. Immigration Council v. U.S. Customs & Border Patrol (D.D.C.) -- deciding that: (1) CBP failed to perform adequate search for various records pertaining to pilot program allowing CBP officials to conduct asylum-related interviews; (2) DHS and USCIS did not provide sufficient information to justify its withholdings pursuant to Exemption 5’s deliberative process privilege, nor did they satisfy statute’s foreseeable harm provision; and (3) government improperly relied on Exemptions 6 and 7(C) to withhold names of CBP officers appearing on one document.

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

FOIA News: More agencies post 2022 Chief FOIA Officer Reports

On March 7, 2022, we reported that agencies had begun to release their 2022 Chief FOIA Officer Reports. Here are several more reports that we have found online since then:

• U.S. Dep’t of Labor

• Securities & Exchange Commission

• Consumer Financial Protection Bureau

• U.S. Postal Service

• Pension Benefit Guaranty Corporation

• Federal Communications Commission

• U.S. Dep’t of State

FOIA News: Americans for Prosperity Foundation Hosts Sunshine Week 2022 Symposium

On March 18, 2022 at 1:00 PM ET, Americans for Prosperity Foundation will host a virtual Sunshine Week 2022 Symposium featuring FOIA Advisor contributors Allan Blutstein and Ryan Mulvey. Information on the event, panelists, and registration information below.

The discussion will involve reflection on this year's submissions to the AFPF Sunshine Week 2022 Essay Symposium, as well as broader conversation about the state of FOIA and the prospects for change.

Learn more about the symposium, and read the panelists' essays here:
Panelists:
Ginger Quintero-McCall, Demand Progress
Matt Topic, Loevy & Loevy
Kate Oh, American Civil Liberties Union
Allan Blutstein, America Rising / FOIA Advisor
Kel McClanahan, National Security Counselors
Susan Harley, Public Citizen
Melissa Wasser, Project on Government Oversight
Moderator:
Ryan Mulvey, Americans for Prosperity Foundation

Register for the event here.

FOIA News: FOIA Advisory Committee passes "Don't Say Glomar" proposal

The Department of Justice should advise federal agencies to stop using the word “Glomar” and replace it with “neither confirm nor deny” (NCND), according to one of four Glomar-related recommendations adopted by the federal FOIA Advisory Committee on March 10, 2022. The director of DOJ’s Office of Information Policy expressed skepticism about canceling the four decades-old term of art, but he abstained from the vote. Four committee members voted against the proposal.

Court opinions issued Mar. 9, 2022

S. Poverty Law Ctr. v. IRS (D.D.C.) -- ruling that IRS properly invoked Exemption 3 to withhold records prepared, furnished, or collected in connection with its criminal investigation of Tennessee slaughterhouse, because such records constituted return information under 26 U.S.C. § 6103(a).

Long v. U.S. Immigration & Customs Enf’t (N.D.N.Y.) -- concluding that ICE performed adequate database search concerning “Form I-247 Requests” relating to detainers and notices of release, and that agency was not mandated to create ‘new, complex queries and new records resulting from those newly created queries.’

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