FOIA News: Panel discussion on FOIA

On Friday, May 20, 2022, the National Press Club’s Journalism Institute hosted a remote panel discussion entitled “My First FOIA: Open records are for everyone.” The three panelists were: (1) Kirsten Mitchell, the compliance team lead for the Office of Government Information Services, which is the federal FOIA ombudsman, and designated federal officer for the U.S. National Archives and Records Administration’s FOIA Advisory Committee; (2) Lulu Ramadan, an investigative reporter at The Seattle Times and a distinguished fellow with ProPublica's Local Reporting Network; and (3) Mark Walker, an investigative reporter for The New York Times, where he previously was its FOIA coordinator, and the president of Investigative Reporters & Editors.

The 58-minute video is here.

Court opinion issued May 18, 2022

Schmitz v. DOD Inspector Gen. (E.D. Va.) -- holding that plaintiff’s failure to file administrative appeals from any of his three requests to DOD IG warranted dismissal of his case on exhaustion grounds; rejecting plaintiff’s arguments that appeals would have been futile and that litigation productions by a different DOD component precluded an exhaustion defense.

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

FOIA News: 2nd Circuit hears argument in Exemption 5 case

On May 18, 2022, the U.S. Court of Appeals for the Second Circuit entertained oral argument in American Oversight v. DOJ, which concerns the propriety of DOJ’s use of Exemption 5 to withhold FBI interviews related to campaign finance investigation of Michael Cohen.

The lower court’s decision is available here.

Court opinion issued May 17, 2022

Campaign Legal Ctr. v. DOJ (D.C. Cir.) -- reversing in part and remanding in part district court’s decision and concluding that draft letters and certain associated emails concerning the addition of citizenship question to 2020 Census fell within the ambit of Exemption 5’s deliberative process privilege.

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

FOIA News: Progress report at Interior Dep't

Interior seeks FOIA reinforcements amid mixed backlog progress

The agency has cut down on the number of outstanding public records requests for the secretary's office and some other agencies. Other divisions haven't seen progress.

By Michael Doyle, Politico Pro, May 16, 2022

The Interior Department’s latest Freedom of Information Act report reveals both progress and slippage on the persistent backlogs that officials hope to whittle down with the help of a budget proposal coming before Congress this week.

The progress:

In the second-quarter report of 2020, the backlogged FOIA requests at Interior’s Office of the Secretary numbered 1,863. That particular backlog has since been cut to 1,252, according to the new fiscal 2022 quarterly report published this month.

FOIA request backlogs likewise fell compared to a comparable period two years ago at Interior agencies including the Fish and Wildlife Service, Bureau of Indian Affairs, and U.S. Geological Survey, among others

Read more here.

Court opinions issued May 13, 2022

Newman v. BOP (D.D.C.) -- determining that government performed “thorough” searches for records concerning former Cuban exile and inmate Antonio Veciana, whose incarceration and supervision ended in the early 1980s. Of note, the court remarked that this case was “yet another example of the “mismatched incentives” that FOIA creates” because “nonprofit FOIA requestees like [plaintiff] pay little to nothing for their FOIA requests . . . [s]o they do not internalize the costs of a wild goose chase like this one. This case has tasked multiple attorneys at three agencies (including the U.S. Attorney's Office) and several FOIA specialists in the search for decades-old inmate records that by regulation should have been transferred or destroyed years ago. Unsurprisingly, they were. But the cost of this predictably fruitless search is borne by the agencies, and ultimately, American taxpayers.”

Story of Stuff Proj. v, U.S. Forest Serv. (D.D.C.) -- awarding $106,214 in attorney’s fees and costs after thirty-percent reduction for time spent on plaintiff’s unsuccessful claims, and disallowing time invested in case after court hearing on plaintiff’s motion for fees and costs.

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

Court opinions issued May 12, 2022

Transgender Law Ctr. v. Immigration & Customs Enf't (9th Cir.) -- reversing district court and finding that: (1) DHS agencies failed to show “beyond material doubt” that they conducted adequate search for records concerning asylum-seeker's death in federal custody; (2) government’s Vaughn Indices failed to provide sufficient detail to permit review of withholdings; (3) court erred in treating all drafts as necessarily covered by Exemption 5’s deliberative process privilege; (4) agencies improperly withheld email domain addresses of agency employees under Exemptions 6 and 7(C); (5) agencies failed to distinguish whether records withheld under Exemption 7(E) were law enforcement techniques and procedure or guidelines; and (6) agencies failed to provide sufficient detail concerning its segregability analysis.

Synopsys, Inc. v. DOL (9th Cir.) (unpublished) -- affirming district court’s decisions that: (1) company untimely moved to intervene after summary judgment was granted to FOIA requester seeking access to company’s employment data (EEO-1 reports); and (2) DOL was entitled to summary judgment in company’s reverse-FOIA action, finding that APA claim on Exemption 4 grounds was precluded by Supreme Court precedent.

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

FOIA News: Veterans Affairs using tech to reduce FOIA delays

VA Increased FOIA Processing Thanks to Automation

The agency is using capacities like RPA to expedite FOIA review, decreasing the time between request and document release.

Adam Patterson & Amy Kluber, GovCIO Media & Research, May 11, 2022

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In fiscal year 2021, the agency received more FOIA requests than it did in fiscal year 2019 — from 21,336 to 27,762. From a preliminary glance at the full list of these requests, one can see many of the requests received in 2021 pertained to things like COVID debt relief data, vaccination rates and other matters that were pertinent to the 2020 COVID-19 pandemic.

The amount of requests it was able to process dipped in fiscal 2020. This is in part due to the disruption in working location, the need for increased remote access to systems and the influx of paper mail. Plus, like many U.S. hospitals, the agency had to handle unprecedented numbers of patients sick with COVID-19 and stand up a nationwide vaccination effort quickly.

The number of requests the agency processed, however, rose again in fiscal 2021 and surpassed the amount processed before the pandemic. Part of this is thanks to its FOIA office introducing more automation into its workflows.

Read more here.

Court opinion issued May 9, 2022

Emuwa v. DHS (D.D.C.) -- concluding on remand that D.C. Circuit’s foreseeable harm opinion in Reporters Committee for Freedom of the Press v. FBI did not warrant revision of court’s initial decision granting summary judgment to government on Exemption 5 grounds.

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

Court opinion issued May 5, 2022

Anthony v. Fed. Bureau of Prisons (W.D. La.) -- holding that venue was improper because plaintiff’s incarceration in Louisiana did not confer residency in that state, requiring case to be transferred to the District of Columbia in absence of evidence of plaintiff’s residency elsewhere.

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