FOIA News: Court upholds majority of EPA's revised FOIA regulations

EPA Beats Challenge to New Freedom of Information Act Process

By Samantha Hawkins, Bloomberg Law, Sept. 13, 2022

• Agency made changes to streamline FOIA requests

• Changes won’t slow FOIA process, judge says

The Environmental Protection Agency defeated claims brought over changes it made to its internal policies for handling Freedom of Information Act requests, after a federal judge in Washington, D.C. ruled that the changes wouldn’t slow down requests or subject them to political interference.

In 2019, the agency removed the option of submitting FOIA requests direct to regional offices of the EPA, authorized the EPA administrator to make final FOIA determinations, authorized agency officials to withhold a portion of a record on the basis of responsiveness, and modified the language related to its aggregation of FOIA requests.

See full article here (subscription required).

Read court’s decision in “Court Opinions” post below.

Court opinions issued Sept. 12, 2022

Ecological Rights Found. v. Envtl. Prot. Agency (D.D.C.) — in a challenge to the EPA’s 2019 direct final rule implementing various changes to the agency’s FOIA regulations, (1) granting the government’s motion to dismiss several claims on various grounds (lack of standing, failure to state a claim, redressability, and/or statute of limitations)—namely, two substantive claims challenging provisions requiring submission of all requests to the EPA’s National FOIA Office and authorizing the Administrator to issue final determinations, as well as a procedural claim alleging failure to promulgate the rule through notice-and-comment rulemaking; (2) remanding the remaining claim without vacatur to permit the EPA to revise a portion of the rule authorizing the withholding of a “portion of a record on the basis of responsiveness.”

Cause of Action Inst. v. Dep’t of Commerce (D.D.C.) — ruling that: (1) requester had standing to bring policy-and-practice challenge to agency’s allegedly unlawful withholding of Section 232 secretarial reports under Exemption 5, in conjunction with the presidential-communications and deliberative-process privileges, until such time as the President directs disclosure; (2) the same policy-and-practice claim was ripe for review because it required neither “speculation about future application” nor consideration of “the facts of a particular case”; and (3) the claim fails on the merits because secretarial reports required under 19 U.S.C. § 1862(b)—or at least the underlying report requested by the plaintiff—falls “squarely within [the presidential-communications] privilege” as “a confidential report from a Cabinet Secretary to the President, created to advise him on matters of national security and ‘made in the process of shaping policies and making decisions.’”

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

FOIA News: FOIA Advisory Committee meeting

The Committee is meeting for the second time this month on Wednesday, September 14, 2022, from 10am to noon. Additional meeting information is available here.

FOIA News: FDA finalizes FOIA regulations

The Food and Drug Administration issued a final rule today amending its FOIA regulations, which will become effective on October 13, 2022. The amendments incorporate statutory revisions from 2007 and 2016, and “reflect changes to the organizational structure of FDA, . . . make the FOIA process easier for the public to navigate, and . . . make provisions clearer.”

Court opinion issued Sept. 9, 2022

Wash. Post v. DOD (D.D.C.) -- ruling that: (1) government could not use Exemption 6 to categorically withhold names of retired, non-Senate confirmed service members who applied to work for foreign governments; (2) government was required to disclose income and security clearance information of retired, Senate-confirmed foreign employment applicants that had been withheld under Exemption 6; (3) Air Force properly relied on Exemption 7(C) to withhold name of military officer alleged to have violated federal law; (4) Departments of the Army and the Navy improperly relied on attorney-client privilege to withhold portions of memoranda containing facts provided by non-agency personnel, and they failed to reasonably segregable factual materials withheld under the deliberative process privilege.

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

Court opinion issued Sept. 8, 2022

Smith v. DOJ (M.D. Fla.) -- finding that: (1) FBI performed adequate searches for all but one of 14 items pertaining to a third party’s prosecution for production and possession of child pornography; (2) FBI properly withheld some, but not all, responsive records pursuant to Exemption 7(A), and FBI’s declaration discussing agency’s concurrent reliance on underlying exemptions was too general to warrant summary judgment.

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

FOIA News: CNCS finalizes updates to FOIA regulations

The Corporation for National and Community Service has completed the process of amending its FOIA regulations, issuing a final rule appearing in the Federal Register on September 9, 2022. The amendments were made “to reflect changes made in the FOIA Improvement Act of 2016 and to make the regulations more user friendly through plain language.” This final rule takes effect on October 11, 2022.

FOIA News: Learning is fundamental, advises DOJ's Chief FOIA Officer

ASSOCIATE ATTORNEY GENERAL VANITA GUPTA HIGHLIGHTS IMPORTANCE OF FOIA TRAINING AND NEW E-LEARNING RESOURCES

By DOJ/OIP, FOIA Post, Sept. 8, 2022

Associate Attorney General Vanita Gupta, who also serves as the Department’s Chief FOIA Officer, recently issued a memorandum to agency Chief FOIA Officers and General Counsels emphasizing the importance of FOIA training, underscoring the Attorney General’s FOIA Guidelines issued earlier this year.  The memorandum highlights three new training modules that the Office of Information Policy (OIP) has made available to all agencies.   

Read more here.

Court opinions issued Sept. 7, 2022

Advancement Proj. v. DHS (D.D.C.) -- deciding that: (1) ICE properly invoked Exemption 5’s deliberative process privilege to withhold records pertaining to visa sanctions, but it failed to properly explain its segregability analysis; and (2) State Department properly withheld records on same subject pursuant to Exemption 7(E) and Exemption 5’s deliberative process privilege.

Judicial Watch v. U.S. Dep’t of State (D.D.C.) -- ruling that agency did not entirely justify its search for records concerning former U.N. Ambassador Samantha Power’s requests to “unmask” the identity of former National Security Advisor Lieutenant General Michael Flynn in intelligence reports.

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

Q&A: Hello from the other side

Q. When does an agency have to notify me of the tracking number assigned to my request? I know the agency can wait at least 10 days, but how long after that?

A. You are right that agencies need not assign tracking numbers to requests that will take 10 days or less to process. See 5 U.S.C. § 552(a)(7). The statute is silent, however, as to exactly when the agency must assign a request number and when it must notify the requester if a request will take longer than 10 days to process. I am not aware of a court opinion on point, nor has the Department of Justice pinpointed a deadline in any guidance.

Because an agency must provide a final determination (or seek an extension) within 20 business days, I assume that would be the latest date allowable by a court, if litigated. A number of agencies specify a time period in their regulations. The U.S. Department of Health and Human Services, for example, will “acknowledge all FOIA requests in writing within 10 working days after receipt by the appropriate office.” 45 C.F.R. § 5.24(a). And the General Services Administration, which participates in the FOIAonline system, assigns a tracking number immediately upon online receipt or no later than 2 business days. See 41 C.F.R. § 105-60.301. By contrast, the National Archives and Records Administration allows itself 20 business days to acknowledge requests. See 36 C.F.R. § 1250.26(a).