ICYMI, OGIS still interested in "still interested" letters

OGIS Is Yet Again Interested in “Still Interested” Letters

By Office of Gov’t Info. Serv., The FOIA Ombudsman, Aug. 22, 2022

As federal agencies approach the end of fiscal year 2022 in September, we know many are aiming to close old FOIA requests and reduce their FOIA backlogs. Some have begun to send requesters “still interested” letters to ensure that the information in a FOIA request is still being sought by the requester from the agency.

The Office of Information Policy (OIP) guidance on the issue advises agencies about “being mindful” in regard to the timelines for requesters to respond and indicate their level of interest. OIP updated this guidance in 2015 and included a series of procedures that agencies should use when sending “still interested” letters.

Read more here.

Q&A: Would a politician lie?

Q. I know Congress is exempt from FOIA, but is there any work-around to request information about a congressperson's casework with constituents out in the community? For example, if a congressperson's website says they have attended 1,000 events in their district, is there any way to FOIA a list of those events with locations and dates? Or if the congressperson says his/her staff has successfully done casework for 5,000 people (i.e. helping them connect with federal agencies, etc.), can you request a list summarizing the general nature of those cases? Or, is none of this FOIA-able because of the congressional exemption?

A. The lists you speak of would likely be maintained—if at all—only by the congressperson’s office, which as you recognized is not subject to FOIA requests. You could try to piece together constituent referrals by sending FOIA requests to federal, state, and local agencies, but that would be a time-consuming project. I try to budget 12 months or more for federal FOIA requests and am no longer submitting requests for the 2022 cycle. In my opinion, a better approach would be to arrange for a reporter ask the congressperson’s office to voluntarily provide the desired lists.

FOIA News: E-discovery tools for FOIA

How Tech-Assisted Review is Transforming FOIA

Government is beginning to adopt AI tools to expedite its obligation of records transparency.

By Katherine MacPhail, Gov’t CIO Mag., Aug. 24, 2022

The Freedom of Information Act (FOIA) process has frequently been plagued with delays, but the massive surge in data production over the past decade means that this problem is only growing. Tackling all of the outstanding FOIA requests manually is not simply burdensome — it is nigh impossible.  

“None of us have time to read a petabyte of data in our lifetime,” said John Facciola, retired U.S. magistrate judge and Georgetown adjunct professor of law, during a Digital Government Institute 930gov panel Tuesday.

That’s where AI comes in. Agencies are turning to technology assisted review tools that were originally developed for the eDiscovery process.

Read more here.

Court opinion issued Aug. 25, 2022

Kendrick v. DEA (D.D.C.) -- concluding that agency did not adequately describe how it searched for certain records concerning plaintiff, who was sentenced to “life imprisonment plus 30 years” for his involvement in a “drug ring,” and that agency properly withheld records pursuant to Exemptions 7(C) and 7(E).

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

FOIA News: Second Circuit limits scope of Exemption 4

Court Sides with Clinics on Freedom of Information Act Exemptions

By Yale Law Sch., YLS Today, Aug. 24, 2022

In a precedent-setting case, a court agreed with three First Amendment clinics that a Freedom of Information Act (FOIA) exemption for confidential commercial information is not meant to protect confidentiality for the sake of confidentiality.

The Media Freedom & Information Access Clinic (MFIA) at Yale Law School, working with clinics at Cornell Law School and the SMU Dedman School of Law, brought the case.

Seife v. FDA concerns a journalist who requested clinical trial data from the Food and Drug Administration related to its approval of a drug. The FDA held that it could withhold the documents, which the drug maker deemed confidential, under an exemption for privileged business information. Now, an appeals court — the first to consider a standard imposed in 2016 — has ruled that agencies cannot withhold such information under this exemption simply because the information is confidential.  

Read more here.

FOIA News: DOJ gives up FOIA fight, releases advisory memo re: Trump

Justice Department releases Mueller-era memo on Trump prosecution

Two top aides to then-Attorney General William Barr said Trump’s acts wouldn’t have merited obstruction charges even if he were not immune as president.

By Josh Gerstein & Kyle Cheney, Politico, Aug. 24, 2022

The Justice Department has released a long-sought legal memo arguing that then-President Donald Trump’s actions during special counsel Robert Mueller’s Trump-Russia investigation did not warrant prosecution for obstruction of justice, even if a president was susceptible to criminal charges while in office.

In the nine-page memo disclosed Wednesday, two of the most senior officials in the Justice Department advised then-Attorney General William Barr that Trump’s threats to fire Mueller and his various public and private outbursts against witnesses he viewed as hostile or unhelpful to him didn’t amount to the sort of case prosecutors would bring under their established standards.

Read more here.

Court opinion issued Aug. 23, 2022

Scoville v. U.S. Dep’t of State (E.D. Wis.) -- ruling that plaintiff’s Complaint alleged sufficient facts to state plausible “policy and practice” claim, noting that agency allegedly failed to comply with plaintiff’s FOIA requests on six occasions from 2014 to 2021.

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

FOIA News: Using FOIA to Compel Federal Agencies to Prove Claims

Using FOIA to Compel Federal Agencies to Prove Claims

Siri & Glimstad LLP, Bloomberg Law, Aug. 23, 2022

A group of scientists and medical researchers successfully sued the FDA under FOIA to force the release of documents related to licensing of the Pfizer-BioNTech Covid-19 vaccine earlier this year. Siri & Glimstad attorneys, who represent the plaintiffs in the lawsuit, discuss how FOIA can be used to compel government authorities to release data the public can then use to evaluate the veracity of government claims.

Read more here.

FOIA News: OIP updates Exemption 6 of FOIA Guide

On August 19, 2022, the Department of Justice’s Office of Information Policy posted an updated version of Exemption 6 of its Guide to the Freedom of Information Act.

FOIA News: Appointments made to 2022-2024 FOIA Advisory Committee

The National Archives and Records Administration has announced the names of the government and non-government members who will serve on the 2022-2024 term of the Freedom of Information Act Advisory Committee. See the 20-person roster here.