Court opinions issued Mar. 28, 2022

Neese v. DOJ (D.D.C.) -- determining that: (1) Office of Professional Responsibility performed adequate search for records concerning its investigation of plaintiff for professional misconduct, and (2) OPR and/or FBI properly withheld records pursuant to Exemptions 3 (grand jury material), 5 (deliberative process privilege), and 6 & 7(C), but FBI failed to meaningfully explain applicability of Exemption 7(E)

Cabezas v. FBI (D.D.C.) -- finding that FBI conducted adequate search for records concerning plaintiff’s criminal case and that it properly withheld records pursuant to Exemptions 5, 6, 7(C) and 7(E).

Informed Consent Action Network v. FDA (S.D.N.Y.) -- concluding that plaintiff’s request for certain clinical trial records was not reasonably described because it contained several latent ambiguities, and that FDA’s willingness to process broader set of records satisfied agency’s obligation to assist plaintiff.

Judicial Watch v. DOJ (D.D.C.) -- ruling that multiple components of DOJ performed reasonable searches for records concerning a 2018 meeting with Associated Press reporters, but that DOJ failed to ask EOUSA to search email account of one Assistant United States Attorney who had attended meeting at issue.

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

FOIA News: Recap of Senate FOIA hearing

'There is a big problem': Senators unite to slam FOIA compliance

The premier transparency law is hobbled by backlogs and mountains of electronic data, lawmakers are told.

By Josh Gerstein, Politico, Mar. 29, 2022

The often bitterly divided Senate Judiciary Committee had little difficulty Tuesday finding consensus that the nation’s premier transparency law, the Freedom of Information Act, isn’t working well.

“My conclusion from this is: there is a big problem,” Sen. Dianne Feinstein (D-Calif.) said during an oversight hearing on the federal government’s ongoing struggle to implement the records-access law in a timely way.

Sen. Jon Ossoff (D-Ga.) said he believes the half-century-old statute allowing journalists, advocacy groups and members of the public to request federal agency records appears to be failing to live up to its original ambitions.

Read more here.

FOIA News: Opening statements of Senate FOIA witnesses

The Department of Justice and Government Accountability Office have released the prepared remarks of their witnesses who appeared before the Senate Judiciary Committee on March 29, 2022.

Here are the prepared remarks of Bobak Talebian, Director, Office of Information Policy.

Here is the testimony of James R. McTigue, Jr., Director, Strategic Issues, Government Accountability Office.

Here is the testimony of Alina Semo, Director of the Office of Government Information Services.

FOIA News: DOJ seeks market information to improve national FOIA portal

The Department of Justice issued an announcement on March 25, 2022. requesting information from vendors to implement a “guided workflow or wizard assisting the public in using the National FOIA Portal.”

See the Request For Information here.

FOIA News: Senate FOIA hearing on March 29, 2022

On Tuesday, March 29, 2022, the Senate Judiciary Committee will hold a hearing entitled “The Freedom of Information Act: Improving Transparency and the American Public’s Right to Know for the 21st Century.” Witnesses include Bobak Talebian, Director, Office Of Information Policy; Alina M. Semo, Director, Office Of Government Information Services, and James R. McTigue, Jr., Director, Strategic Issues, Government Accountability Office. Live video will be available at 10:00 AM here.

FOIA News: Fastest & slowest agencies of FY 2021

According to annual data available on FOIA.gov, the following five agencies reported the highest median number of days to process simple, perfected requests in fiscal year 2021:

1. National Archives and Records Administration: 179 days

2. United States Institute of Peace: 173 days

3. Office of Management and Budget: 170 days

4. Advisory Council of Historic Preservation: 106 days

5. U..S Agency for Global Media: 99 days

Seven agencies reported median response times of one (1) day in FY 2021 for simple, perfected requests:

1. Department of Agriculture

2. Harry S. Truman Scholarship Foundation

3. Administrative Conference of the United States

4. Federal Mine Safety and Health Review Commission

5. Gulf Coast Ecosystem Restoration Council

6. Office of the Director of National Intelligence

7. Office of Navajo and Hopi Indian Relocation

Court opinions issued Mar. 25, 2022

Sanders v. FBI (D.D.C.) -- ruling that FBI properly relied on Exemption 7(E) in refusing to confirm or deny existence of records concerning an initiative of the United Kingdom’s National Crime Agency to tackle child sexual exploitation.

Brown v. FBI (D. Or. 2022) -- finding that FBI properly relied on Exemptions 6 and 7(C) in refusing to confirm or deny existence of records concerning witness to 2015 San Bernardino terrorist attack and declining to credit plaintiff’s allegation that shooting was episode of government-sponsored terrorism.

Cayuga Nation v. U.S. Dep't of the Interior (D.D.C.) -- concluding that Bureau of Indian Affairs failed to perform reasonable search for records concerning agency’s 2020 visit to plaintiff’s reservation; (2) BIA failed to justify withholding certain redacted portions of a “trip report” pursuant to Exemption 5’s deliberative process, attorney work-product, or attorney-client privileges; and (3) with limited exceptions, BIA properly withheld portions of a “briefing report” pursuant to the attorney-client privilege and Exemptions 7(C) and 7(D), but it failed to justify its deliberative process privilege claims.

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

FOIA News: Analysis of AG Garland's FOIA memo

Unpacking the New FOIA Memo

By Adira Levine, Yale J. on Reg., Mar. 24. 2022

This Sunshine Week brought much awaited Freedom of Information Act (FOIA) guidance from the Biden administration. On March 15, Attorney General (AG) Merrick Garland issued a FOIA memorandum directed to the heads of executive departments and agencies. The four-page memo announces Department of Justice (DOJ) guidelines established for the administration of FOIA. Its issuance was anticipated in light of historical precedent and sought after by transparency groups. In the memo, AG Garland focuses on four areas: the presumption of openness, proactive disclosures, removing access barriers and reducing request backlogs, and ensuring fairness and effectiveness in the FOIA process.

Read more here.

Court opinions issued Mar. 23, 2022

Cannady v. EOUSA (D.D.C.) -- holding that agency properly invoked Exemption 7(C) to withhold records concerning plaintiff’s criminal co-defendant, specifically inventories of items seized from co-defendant and notes of interviews between the FBI and co-defendant.

Gun Owners of Am. v. FBI (D.D.C.) -- ruling that: (1) FBI properly denied two requests as unreasonably described because plaintiff’s first request embedded “a fundamental uncertainty about whose communications [were] requested,” and its second request sought “all documents related to a certain question without providing further limitations or providing the FBI with a basis to narrow its search”; and (2) plaintiff’s remaining request was reasonably described “despite using the word ‘involving’ due to its inclusion of a discrete state agency whose communications are requested, specific search terms, explicit temporal parameters, and sufficient basis for the agency to narrow which custodians it must search to find responsive records.”

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

FOIA News: Reporters Committee analyzes FOIA decisions of SCOTUS nominee

Reporters Committee reviews Judge Ketanji Brown Jackson’s record on First Amendment, Freedom of Information Act cases

Judge Jackson authored dozens of FOIA-related opinions while serving on the U.S. District Court for the District of Columbia.

Reporters Committee for Freedom of the Press, Mar. 21, 2022

On Feb. 25, President Joe Biden nominated Judge Ketanji Brown Jackson to fill the U.S. Supreme Court seat of retiring Justice Stephen Breyer. In this report, the Reporters Committee surveys Judge Jackson’s decisions in First Amendment and Freedom of Information Act cases from her tenure on the U.S. District Court for the District of Columbia. Although Judge Jackson was appointed to the U.S. Court of Appeals for the D.C. Circuit in 2021, none of the opinions she authored for that court pertains to issues affecting journalists.

Perhaps most noteworthy to journalists is Judge Jackson’s extensive judicial record on FOIA. She has authored dozens of FOIA-related opinions while serving on the district court from 2013 through 2021. In the analysis below, the Reporters Committee has concluded that Judge Jackson’s FOIA rulings demonstrate a deference to agency exemption claims, especially in the national security context, but a willingness to deny an agency summary judgment where government officials failed to provide sufficient evidence to keep records hidden from the public. Her record also reveals a willingness to rule in favor of record requesters on non-exemption issues pertaining to the sufficiency of an agency’s search for records and record fee disputes.

Read more here.