FOIA News: Chief FOIA Officers Council to meet Nov. 3

The Chief FOIA Officers (CFO) Council will meet remotely on Thursday, November 2, 2022, from 10 AM to 12:30 PM, to provide updates from the Department of Justice, the National Archives, and Council Committees. Members of the public may attend the meeting. See attendance details here.

FOIA News: Air Force denies releasing House candidate's personal info

Air Force Casts Doubt on Politico’s Claim that GOP Candidate’s Sexual Assault Was Public Info

By Isaac School, Nat’l Rev., Oct. 13, 2022

The Air Force has denied that Politico‘s outing of a Republican congressional candidate’s status as a sexual-assault survivor could have been based on documents released as part of a Freedom of Information Act (FOIA) request, despite the publication’s claims otherwise.

Politico’s Adam Wren reported last week that Indiana congressional candidate and Air Force veteran Jennifer-Ruth Green suffered a sexual assault while serving in Iraq, despite Green’s pleas that he refrain from disclosing the details. Wren claimed that the lengthy profile of Green was based on documents obtained through a FOIA request and provided to Politico by a third party.

Read more here.

FOIA News: Happy Bday, OGIS, Part 1

Understanding the Office of Government Information Services (part 1/4)

By Kimberlee N Ried, The FOIA Ombudsman, Oct. 12, 2022

As we at the Office of Government Information Services (OGIS) celebrate our 13th birthday, Ombuds Day, and Mediation Week, we want to provide a refresher and overview of our services and explain a bit more about what we do as a part of the Freedom of Information Act (FOIA) process. Below is some historical information about OGIS along with answers to common questions about how we do our work.

Read more here.

Court opinion issued October 10, 2022

Roberson v. FBI (D.D.C.) -- determining that: (1) plaintiff exhausted his administrative remedies because his lawsuit was deemed filed on the date he provided it to prison officials for mailing, which preceded the FBI’s untimely response by two days; and (2) doctrine of res judicata did not preclude plaintiff from bringing his FOIA claim.

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

FOIA News: Air Force discloses Congressional candidate’s performance evaluation; identifies her as sexual assault victim

In case you missed it, Politico reported last Friday that Jennifer-Ruth Green, a candidate for the U.S. House in Indiana, had received a poor performance review from the Air Force in 2009, and that she had been a victim of sexual assault. Notably, Politico further reported that it had obtained this information through a third party’s FOIA request to the Air Force. Ms. Green has called foul, asserting that the disclosure was illegal. She appears to have a good case. Absent overriding public interest, performance appraisals of federal officials are routinely withheld on privacy grounds pursuant to Exemption 6. See, e.g., Judicial Watch v. U.S. Dep’t of Commerce, 337 F. Supp. 2d 146, 176-177 (D.D.C. 2004); 5 C.F.R. 293.311(a)(6) (OPM regulation excluding performance appraisals from list of personnel information available to public). The Department of Defense’s privacy policies with respect to its service members have traditionally followed or been more stringent than those of the Office of Personnel Management, particularly after September 11, 2001.

FOIA News: D.C. Circuit to hear FOIA case on Oct. 11, 2022

On Tuesday, October 11, 2022, the U.S. Court of Appeals for the District of Columbia Circuit will hear oral argument in Watkins Law & Advocacy, PLLC v. DOJ, which concerns records about veterans who are prohibited from owning firearms.

A livestream and recording will be available on the court’s website here.

A copy of the district court’s relevant decision is here.

Court opinion issued Oct. 6, 2022

Barrack v. DOJ (D. Colo.) -- concluding that plaintiff lacked standing to challenge the National Security Division’s denial of his attorney’s FOIA request, because the request did not indicate that it was made on behalf of plaintiff; rejecting plaintiff’s argument that NSD was sufficiently aware on whose behalf the request was submitted so as to confer standing, noting that plaintiff was mentioned only once in an email to the Office of Information Policy.

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

FOIA News: DOJ opposes suit against DEA for repeated delays

DOJ Wants Drug-Related FOIA Practices Suit Thrown Out

By Mike Curley, Law360, Oct. 6, 2022

Attorney General Merrick Garland and the Drug Enforcement Agency are asking a Texas federal court to throw out claims that the DEA has a practice of stonewalling Freedom of Information Act requests, saying the complaint doesn't show that the DEA's response to requests about psilocybin were improper. . . .

Read more here (accessible with free trial subscription).

See article about lawsuit here.

Court opinion issued Oct. 4, 2022

Nat'l Sec. Archive v. CIA (D.D.C.) -- relying on government’s ex parte, in camera declarations, holding that CIA properly invoked on Exemptions 1 and 3 to withhold in full a memo drafted by the Director of the Defense Intelligence Agency in 1989, notwithstanding State Department’s subsequent publication of memo’s transcribed text with minor redactions.

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

Q&A: The survey says . . .

Q. I saw three FOIA requests get denied in full:
1. This request for communications between the Consumer Financial Trade Commission (CFTC) and an outside entity that had received a no action letter that was later revoked was denied in full, claiming Exemption 7(A).
2. This request for all DOJ’s Office of Inspector General reports was denied in full, claiming the request doesn't describe the records sought.
3. This request for FOIA requests received by the Drug Enforcement Administration about Paul Le Roux was denied in full, claiming Exemptions 6 and 7(C).
Do these seem like reasonable denials to you? Any advice on how to proceed?

A. I'll briefly comment on each request in turn.

1. Yes, the CFTC's Exemption 7(A) denial seems reasonable to me on its face. As you probably know, PredictIt filed a lawsuit on September 9, 2022. challenging CFTC's revocation of its No-Action Letter. Public disclosure of the three categories of requested records could very well interfere with the government's legal defense in that pending case. The exemption would not, of course, apply to CFTC's August 4, 2022 letter to PredictIt, because CFTC posted it online. But keep in mind that an agency relying upon Exemption 7(A) need not justify its withholdings on a document-by-document basis, but may focus upon categories of records.

2. Either the request to DOJ/OIG is unreasonably described (i.e., vague) or the request is moot, I'm not sure which is the case. To wit, DOJ/OIG publishes reports on its website and those reports are searchable by date, keyword, type, and component. If the request seeks documents other than those published reports, it is entirely unclear to me what OIG is supposed to look for.

3. The DEA appears to have reflexively issued a privacy Glomar response, which it typically does when asked for records about a third party. An administrative appeal might be successful if accompanied by evidence that DOJ prosecutors or DEA officially acknowledged that Mr. Le Roux had a connection to DEA. First-hand evidence, e.g., press release, trial transcripts, or other court filings, would be more persuasive than media reporting. Note that even if DOJ’s Glomar response were to be defeated, that does not mean the government would be required to release responsive records. Rather, the government would be required to conduct a search, acknowledge whether records existed or not, and process any responsive records with all of the exemptions at its disposal.