FOIA News: HHS posts annual FOIA report; backlog and costs up double digits

The U.S. Department of Health and Human Services has published its fiscal year 2022 annual FOIA report. Here are the highlights.

• 38,462 requests received, a 15 percent increase from FY 2021, when 33,158 requests were received.

• 37,241 requests processed, a 13.5 percent increase from FY 2021, when the agency processed 32,952 requests.

• Backlogged requests increased 13.2 percent, from 9,955 in FY 2021 to 11,320 in FY 2022.

• Processing and litigation costs were $29 million and $4.5 million, respectively, a 28 percent increase from FY 2021 ($26 million total costs).

• Processing fees of $717,119 were collected, or 2,4 percent of total costs, with FDA collecting the highest amount at $447,791.

Court opinion issued Feb. 17, 2023

Kolbusz v. FBI (D. D.C.) -- adopting magistrate’s recommendation that FBI properly withheld records pertaining to plaintiff pursuant to Exemption 5’s attorney-client and deliberative process privileges, and ruling that magistrate properly denied plaintiff’s motion to supplement his complaint.

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

FOIA News: Sen. Rubio Reintroduces FOIA Fix Act

Rubio Reintroduces 13 Bills

Office of Sen. Marco Rubio, Feb. 17, 2023

FOIA Fix Act. First introduced in June 2022, this legislation would fix an existing loophole in the Freedom of Information Act (FOIA) that allows foreign individuals, entities, and governments to submit FOIA requests. 

Read more here.

FOIA News: ICE deserved to be torched by 2nd Circuit, says Techdirt

Appeals Court Tells ICE Its Counterintuitive Tracking System Doesn’t Justify Jerking Around FOIA Requesters

from the stop-being-deliberately-obtuse dept

By Tim Cushing, Techdirt, Feb. 16, 2023

U.S. Immigration and Custom Enforcement (ICE), like nearly every government agency, doesn’t care much for FOIA requests or requesters. It generally takes a lawsuit to force the agency to comply with its FOIA obligations. And its day-to-day handling of FOIA requests is so uninspired, it couldn’t even come up with a reason to deny Mike Masnick’s fee waiver request.

Based on my review of your March 4, 2014 letter and for the reasons stated herein, I have determined that your fee waiver request is deficient because .

It will have to be (slightly) more responsive now. The Second Circuit Appeals Court has reversed a pretty terrible decision by the lower court in an FOIA lawsuit brought by the ACLU. The Appeals Court decision [PDF] opens up with the court’s attempt to explain ICE’s needlessly-convoluted incident tracking system.

Read more here.

FOIA News: FOIA Advisory Committee seeks to fill vacancy

The National Archives and Records Administration is soliciting nominations for a non-government representative to serve on its FOIA Advisory Committee through June 30, 2024. Further details are available in a Federal Register notice published on February 17, 2023.

Court opinion issued Feb. 16, 2023

Am. Soc’y for the Prevention of Cruelty to Animals v. Animal & Plant Health Inspection Serv. (2d Cir.) — affirming district court dismissal of “policy or practice claim” that alleged APHIS, as a result of its decommissioning of certain databases of proactively disclosed records , was regularly citing “exemptions that do not apply” and engaging in “unreasonable, inexcusable and unexplained delays” while adjudicating requests and appeals for the same records previously hosted on the databases; holding that, “even assuming that a ‘policy or practice’ claim is cognizable [in the Second Circuit], . . . such a claim . . . [fails] because [Congress] . . . reversed the alleged policy or practice . . . [by] direct[ing] the agencies to ‘restore’ each decommissioned database ‘and its contents’ to the status quo ante . . . [and to make those records] available ‘in their entirety without redactions except signatures’”; reasoning that, even if the D.C. Circuit’s decision in Payne Enterprises, Inc. v. United States, were adopted, it would be inapt because the same “extraordinary set of circumstances” is not present here; of especial note, in a concurrence, Judge Menashi opined that the FOIA does not provide for a ‘policy or practice’ claim, and “[t]he proper avenue for challenging the policies and practice of agencies [vis-a-vis the FOIA] is the APA, 5 U.S.C. § 706.”

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

FOIA News: Interior Department posts annual FOIA report

The U.S. Department of the Interior has released it annual FOIA report for fiscal year 2022. Here are the highlights.

• 6407 requests received, a 1.6 percent increase from FY 2021 (6302 requests received).

• 6182 requests processed, a 7 percent increase from FY 2021 (5774 requests processed).

• Request backlog increased 7.2 percent, from 4484 in FY 2021 to 4808 in FY 2022.

• The response times for all “processed perfected requests” were highest at the Office of the Secretary, which reported taking an average of 351 days to process “simple” requests, an average of 953 days to process “complex” requests, and an average of 841 days to process “expedited” requests.

• Processing and litigation costs exceeded $18.5 million, with agency components collecting a meager total of $5,264 in fees.

FOIA News: Sunshine Week award nominations close Feb. 17

On February 15, 2023, the Department of Justice’s Office of Information Policy announced that it had extended its deadline to nominate FOIA professionals for Sunshine Week awards by two (2) days, from February 15, 2023, to February 17, 2023. See OIP’s announcement and the nomination process here.

FOIA News: EPA finds replacement for FOIAonline [updated]

The EPA has found a replacement for FOIAOnline. Relativity and Deloitte & Touche LLP announced today that EPA has deployed “RelativityOne Government” as the agency’s cloud solution for processing FOIA requests. See announcement here.

Addendum: Following publication of this post, a representative from Relativity notified us that “the news included in [its] press release is totally separate from FOIAonline.”

Court opinion issued Feb. 13, 2023

Immigrant Def. Project v. DHS (S.D.N.Y.) -- holding that: (1) ICE’s search was inadequate because it neglected to search its Office of Public Affairs for records pertaining to “Operation Palladium,” an enforcement program initiated during the Trump Administration, and because it omitted “clearly relevant” search terms; (2) ICE failed to sufficiently explain the applicability of the deliberative process and attorney work-product privileges to two disputed emails; and (3) ICE properly relied on Exemption 7(E) to redact a fugitive operations handbook , but it did not demonstrate the propriety of its remaining withholdings using the same exemption.

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