FOIA News: DOJ Sunshine Week 2023 Celebration

Department of Justice Sunshine Week 2023 Celebration

Office of Info. Pol’y, Dep’t of Justice, Feb. 27, 2023

We invite you to join the Department of Justice for this year’s kick-off to Sunshine Week in person and online.  On Monday, March 13, 2023 from 10:00 am – 12:00 pm, the Department will hold its annual Sunshine Week celebration event in the Great Hall.  Established in 2010, this will mark the thirteenth year of the Department’s event recognizing the importance of FOIA for government transparency and celebrating the efforts of those professionals dedicated to the success of their agencies’ FOIA administration.  We invite all agency personnel and members of the public to join us for this year’s event.

The event will include the Department’s annual Sunshine Week FOIA Awards Ceremony to honor and celebrate the work of dedicated FOIA professionals across the government.

The event will also be broadcast via livestream at www.justice.gov/live.   

We hope that you can join us for this year’s celebration.  If you are interested in attending this event in person, you must register through Eventbrite by Friday, March 10 at 4:00 pm.  Registration is not required to view the livestream.  If you have any questions regarding this event, please contact the Office of Information Policy’s Compliance Team at (202) 514-FOIA (3642). 

Click here for more information.

Court opinion issued Feb. 23, 2023

Jabar v. DOJ (2nd Cir.) -- affirming district court’s decision and rejecting arguments that plaintiff-appellant was entitled to greater access to FBI records concerning his criminal case as a constitutional right under Brady v. Maryland, and that district court erred in declining to review documents withheld in full.

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

FOIA News: Transportation and Labor Departments release annual FOIA reports

Two more cabinet department, Labor and Transportation, released their fiscal year 2022 FOIA reports ahead of next Wednesday’s posting deadline. Here are the highlights—or lowlights, as the case may be:

Dep’t of Transportation

• 19,090 requests received and 18,958 processed, a deficit of 132 requests. In 2021., DOT received 15,740 requests and processed 14,754 requests, a deficit of 986 requests.

• Request backlog increased 11.4 percent, from 4,811 requests in 2021 to 5,362 in 2022.

• Appeal backlog climbed from 161 in 2021 to 222 in 2022, more than a 37 percent increase.

• Average overall time to respond to processed perfected requests was 51 days for “simple” requests (with the Secretary’s Office clocking the fastest time at 7.3 days), whereas “complex” requests took an overall average of .285 days. Of note, the Federal Railroad Administration required an average of 182 days to respond to “simple” requests and 243 days for “complex” requests.

• The Federal Aviation Administration reported having the 10 oldest pending requests, which ranged from about 5 to 6 years old.

• $18.3 million in processing and litigation costs, with a total of $163,779 in requester fees collected.

Dep’t of Labor

• 14,491 requests received, a 3.4 percent increase from the 13,560 requests received in 2021.

• 14,335 requests processed, a 2.2. percent increase from the 14,022 requests processed in 2021.

• Request backlog increased 17.2 percent, from 1216 requests in 2021 to 1426 requests in 2022.

• Appeal backlog fell from 295 in 2021 to 286 in 2022, a 3 percent decrease.

• Average time to respond to processed perfected requests was 49 days for “simple” requests and 250 days for “complex” requests.”

• $18.3 million in total costs, collecting only $163,779 in processing fees.

Court opinion issued Feb. 22, 2023

Assassination Archives & Research Ctr. v. CIA (D.D.C.) -- determining that: (1) CIA performed adequate search for certain records concerning the Kennedy assassination and it was not required to search its operational files merely because plaintiff speculated that certain individuals should have been targets of government investigations; further rejecting plaintiff’s argument that CIA’s failure to find more material, as well as plaintiff’s perceived importance of those records, undermined the adequacy of agency’s search efforts; and (2) although CIA’s use of Exemption 1 to withhold records over 50 years old was questionable, CIA properly relied on Exemption 3 in conjunction with the National Security Act and the Central Intelligence Agency Act; (3)(a) CIA met its burden to segregate and release non-exempt material; (b) CIA was not required to initiate a new search of the classified records retrieved from former President Trump, who plaintiff asserted “had expressed strong interest” in the subject; (c) plaintiff was not entitled to discovery merely because CIA initially denied having received plaintiff’s request; (d) if plaintiff seeks original (and perhaps more legible) FBI records, as opposed to the “blemished” records the CIA located in its files and referred to FBI, it must submit a request to the FBI.

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

FOIA News: FOIA Advisory Committee to meet March 2nd

The 2022-2024 federal FOIA Advisory Committee will virtually convene its fourth meeting on Thursday, March 2, 2023, at 10 a.m. ET. Meeting materials and registration information are available here. The public is welcome to attend the meeting via NARA’s YouTube channel or WebEx (registration required by Feb. 28).

Court opinions issued Feb. 21, 2023

Waterman v. IRS (D.C. Cir.) -- affirming in part and reversing in part district court’s decision and holding that: (1) IRS properly relied on Exemption 5’s deliberative process privilege to withhold “evaluative” facts in an auditor’s memo concerning plaintiff’s suspected misconduct, but that the memo’s chronological collection of plaintiff’s statements was not exempt; (2) IRS improperly invoked Exemption 5 to withhold an auditor’s memo summarizing her telephone calls with plaintiff that, in the majority’s view, reflected no point of view; and (3) IRS properly invoked Exemption 5 to withhold an analysis of plaintiff’s disciplinary referral, including extracted facts pertinent to plaintiff’s alleged misconduct. In a partial dissent, one panelist opined that both memos were deliberative because “(1) their purpose was to assist in a discretionary decision” (whether to further investigate [plaintiff]) and (2) their authors selected facts that reflected a point of view (that plaintiff should be investigated).”

Project on Gov't Oversight v. DHS (D.D.C.) -- ruling that: (1) plaintiff, a sophisticated FOIA party, had expressly waived its right—via email exchanges with opposing counsel and in joint status reports—to contest the sufficiency of agency’s search for certain complaint-related records maintained by the Office of Civil Rights and Civil Liberties; and (2) DHS improperly relied on Exemption 5’s deliberative process privilege to withhold “unverified observations of first impression” contained in expert reports, and it failed to provide sufficient evidence to establish that experts’ analysis, opinions, or recommendations met the foreseeable harm requirement.

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

FOIA News: Atty Pushes Back After DOJ Says DEA Not An Agency

Atty Pushes Back After DOJ Says DEA Not An Agency

By Sam Reisman, Law360, Feb. 22, 2023

An attorney who brought a Freedom of Information Act suit against the Drug Enforcement Administration asked a federal judge on Tuesday for a judgment declaring that the DEA is, in fact, a government agency, despite what Department of Justice officials have said.

Read more here (subscription).

FOIA News: Dep't of Education releases annual FOIA report; backlog doubles

The U.S. Department of Education has posted its annual FOIA report for fiscal year 2022, and much of the news is not great. Here are the highlights:

• 2372 requests received and 1462 processed, a deficit of 910 requests. In FY 2021, the Department processed more requests (2292) than it received (2151) .

• The request backlog soared from 697 in FY 2021 to 1557 in FY 2022, a staggering 123 percent increase.

• Total processing costs dropped from $9.5 million to $8.6 million, a 9.4 percent decrease.

• Overall agency response time for all processed perfected requests was an average of 5.6 days for “simple” requests and 182 days for “complex” requests.

• $19,515 of processing fees were collected, which is less than one quarter of one percent of the Department’s processing costs.

Court opinion issued Feb. 20, 2023

State of Georgia v. DOJ (D.D.C.) -- holding that: (1) DOJ failed to establish that communications exchanged with private parties concerning joint election-related lawsuits against plaintiff qualified as “intra-agency” communications under the consultant corollary exception to Exemption 5; and (2) even if disputed communications were considered “intra-agency,” DOJ could not rely on the deliberative process and attorney work-product privileges because it failed to show that it had “sufficiently similar legal interest with of the private litigation groups” to invoke the common interest doctrine.

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

FOIA News: HUD publishes annual FOIA report; backlog down by more than 20 percent

The U.S. Department of Housing and Urban Development has released its fiscal year 2022 annual FOIA report. Here are the highlights:

• 1819 requests received, an increase of 4.9 percent from FY 2021 (1734 requests)

• 2031 requests processed, a decrease of 2.9 percent from FY 2021 (2093 requests)

• Backlogged requests stood at 626 requests at the end of FY 2022, a reduction of 22.5 percent from FY 2021 (808 requests).

• The average response time for all processed perfected requests was 80.17 days for “simple” requests and 276 days for “complex” requests.

• Processing costs and litigation costs amounted to $7.17 million. The Department reported only $100,535 in total costs for FY 2021, which undoubtedly was an error.

• Fees collected for processing requests amounted to $12,372, less than one-fifth of one percent of its total costs.