FOIA Advisor

Court opinions issued Mar. 27, 2023

Court Opinions (2015-2024)Allan BlutsteinComment

Vanda Pharm. v. FDA (D.D.C.) -- concluding that even if agency’s clinical review of pending new drug application fell within Exemption 5’s deliberative process privilege, agency failed to meet statute’s foreseeable harm requirement; reasoning that: (1) disclosure would not likely chill deliberations because underlying reviews are required to be published in NDA is ultimately approved; and (2) FDA’s concern that drug manufacturer might use records to mislead public and medical practitioners was too speculative to meet foreseeable harm requirement.

Carpezzi v. DOJ (M.D. Fla.) -- determining that: (1) FBI performed reasonable search for records concerning plaintiff, who believed his email was hacked by the government (among other things); and (2) FBI properly withheld identities of employees under Exemption 7(C), as well as sensitive investigation number and database identifier under Exemption 7(E).

Anand v. HHS (D.D.C.) -- determining that: (1) DEA performed adequate search for records underlying co-plaintiff’s indictment for health care fraud and distribution of controlled substances, and (2) criticizing pro se plaintiffs for repeatedly violating numerous rules and Court orders with respect to their litigation filings.

Annand v. HHS (D.D.C.) determining that HHS OIG performed adequate search for records underlying co-plaintiff’s indictment for health care fraud and distribution of controlled substances; (2) even though portion of co-plaintiff’s request was too vague, HHS failed to follow agency regulation requiring agency to clarify request; and (3) criticizing pro se plaintiffs for repeatedly violating numerous rules and Court orders with respect to their litigation filings.

Immigrant Legal Advocacy Project v. ICE (D. Me.) -- finding that agency performed adequate search for various records concerning agency’s use of a county jail, except for certain policy documents.

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

Court opinions issued Mar. 23, 2023

Court Opinions (2015-2024)Allan BlutsteinComment

Americans for Fair Treatment v. USPS (D D.C.) -- concluding that: (1) plaintiff lacked standing to challenge FOIA regulation that did not allow an appeal to the head of the agency himself, because plaintiff did not allege sufficient risk of future harm; (2) USPS did not perform adequate search for records concerning a COVID-related “Privacy Statement” on its website; (3) USPS failed to delineate its Exemption 5 withholdings, failed in part to adequately explain its attorney-client privilege withholdings, and failed to provide specific foreseeable harm justifications.

Pickering v. DOJ (W.D.N.Y.) -- (1) adopting magistrate’s report and recommendation (“R&R”) that ATF and FBI performed adequate searches, and that FBI properly withheld disputed records; and (2) rejecting R&R’s conclusion that plaintiff improperly sued DHS rather than its component agencies and remanding for further proceedings.

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

Court opinions issued Mar. 22, 2023

Court Opinions (2015-2024)Allan BlutsteinComment

Ghinis v. USCIS (M.D. Fla.) -- determining that agency’s search was deficient because it provided “undetailed and conclusory” explanation for why it believes plaintiff’s Alien file is lost; noting that plaintiff provided documentary evidence that requested records could be in two field offices that agency did not search.

Kurzban v NSA (S.D. Fla.) -- finding that: (1) DIA and FBI performed adequate searches for records concerning plaintiffs; (2) NSA and CIA properly refused to confirm or deny the existence of certain records pursuant to Exemption 1 and 3; and (3) FBI properly withheld certain record pursuant to Exemptions 1, 3, 6, 7(A), 7(D), and 7(E).

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

Court opinions issued Mar. 21, 2023

Court Opinions (2015-2024)Allan BlutsteinComment

Energy Policy Advocates v. Dep’t of the Interior (D.D.C.) -- deciding that: (1) agency performed adequate search for calendar and meeting records of agency senior advisor, noting that agency was not required to search for in-meeting chats on Zoom, which the agency did not control; (2) agency properly relied on Exemption 6 to withhold personal email addresses, email addresses of White House, EOP, DOD, and DHS employees, and a cell phone number; and (3) agency’s generic, boilerplate explanations for its deliberative process privilege claims did not “even come close” to meeting its burden, nor did agency’s justifications for relying on the presidential communications privilege.

Akel v. DOJ (D.D.C.) -- ruling that Executive Office for U.S. Attorneys performed adequate supplemental search for certain archived emails pertaining to plaintiff’s criminal case, but that it neglected to adequately explain its search methods in response to broader, second request.

Gatore v. DHS (D.C. Cir.) (unpublished) -- affirming district court’s decision to deny class certification under Rule 23(b)(3), principally because agency had rescinded its policy of withholding “Assessment to Refer” documents in full, rendering case moot.

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

Court opinions issued Mar. 17, 2023

Court Opinions (2015-2024)Allan BlutsteinComment

Mar. 17, 2023

Boundy v. U.S. Patent & Trademark Office (E.D. Va.) -- ruling that: (1) agency performed reasonable search for guidance documents concerning acceptable signatories, even though it did not use plaintiff’s long list of preferred search terms or uncover “secret rules” plaintiff believed existed; and (2) following in camera review, agency properly relied on Exemption 5’s deliberative process and attorney-client privileges to withhold all but two images that it previously disclosed to plaintiff.

Richardson Bay Envtl. Prot. Ass'n v. FAA (D.D.C.) -- concluding that: (1) FAA did not sufficiently explain why, in “this day and age,” it searched for certain potentially responsive records only in a physical filing cabinet and not electronically; and (2) agency properly invoked Exemption 7(A) to withhold certain records concerning plaintiff’s complaints about third party.

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

FOIA News: DOL office laboring to handle submitter notice process

FOIA News (2015-2024)Allan BlutsteinComment

Tiny Labor Agency Struggles to Meet Huge Diversity Data Request

  • FOIA includes thousands of company diversity reports

  • Agency has made errors on non-objector list

By J. Edward Moreno, Bloomberg Law, Mar. 16, 2023

Federal contractors have until March 17 to object to their diversity data being disclosed by the Labor Department as part of an open-records request process that has now taken over six months and has been riddled with delays and errors.

The DOL’s Office of Federal Contract Compliance Programs has struggled to produce an accurate list of contractors who don’t object to their workforce diversity data being disclosed in response to a massive Freedom of Information Act request from a journalism nonprofit.

The small subagency that enforces antidiscrimination laws and standards on companies that do business with the government has released lists of non-objectors that contained errors and has rolled over the deadline to object several times. Information from companies that don’t object—such as Oracle Inc. and Laboratory Corp.—will be released first, then the agency will make a call on whether the objections submitted are valid or not.

Read more here.

FOIA News: “Citizen's Guide to the Freedom of Information Act”updated

FOIA News (2015-2024)Allan BlutsteinComment

House Democrats Release a New Citizen's Guide to the Freedom of Information Act

Journalists, educational institutions, nonprofits, private corporations and members of the public make use of the records law.

By Courtney Buble, Gov’t Exec., Mar. 16, 2023

In recognition of Sunshine Week, House Democrats released on Thursday an updated citizen's guide to the Freedom of Information Act. 

The annual Sunshine Week celebrates and champions open government and transparency. Journalists, educational institutions, nonprofits, private corporations and members of the public make use of the records law. 

“American democracy depends on openness for government accountability,” said Rep. Jamie Raskin, D-Md., chairman of the House Oversight and Accountability Committee, in a statement. “Committee Democrats are empowering the public by making it easier to access government records with this citizen’s guide to FOIA. By boosting transparency, we offer all citizens the ability to serve as a fundamental check on government officials abusing our democratic institutions.”

Read more here.

FOIA News: 2023 Chief FOIA Officer Reports available

FOIA News (2015-2024)Allan BlutsteinComment

The Attorney General's 2009 FOIA Guidelines require the Chief FOIA Officer (CFO) for each federal agency to submit a report to the Attorney General containing a detailed description of the steps taken by the agency to improve FOIA compliance and transparency. The Department of Justice’s Office of Information Policy has started to post this CFO reports for 2023, which are available on its webpage here.

FOIA News: One FOIA engine gone, another rises

FOIA News (2015-2024)Allan BlutsteinComment

FOIA Mapper is no more. Launched with great fanfare in 2016, the search engined developed by Max Galka allowed users to search a database of past FOIA requests, as well as a catalog of the government’s systems of records. Mr. Galka did not respond to FOIA Advisor’s request for comment before this post was published.

Perhaps filling part of that void is FOIAengine, a commercial tool in beta testing that allows subscribed users to search agency FOIA logs. When FOIA Advisor was provided access during the first week in March, the engine included logs from about 15 agencies and was word searchable by, among other things, subject, agency, requester name, and requester organization. We found FOIAengine to be user-friendly with a clean interface. What remains unclear from the website is how many more agencies are likely be included (all cabinet agencies, for example?), and whether FOIA logs will be added more regularly than, say, once per year.

FOIA News: OIP Announces Additional Training Dates

FOIA News (2015-2024)Ryan MulveyComment

OIP Announces Additional FOIA Training Dates

Office of Info. Pol’y, Dep’t of Justice, Mar. 15, 2023

Today, the Office of Information Policy (OIP) announces new dates for FOIA training for the remainder of Fiscal Year 2023.  As part of its responsibility to encourage agency compliance with the FOIA, OIP offers numerous training opportunities throughout the year for agency FOIA professionals and individuals with FOIA responsibilities. 

These courses are designed to offer training opportunities for personnel from all stages of the FOIA workforce, from new hires to the experienced FOIA professionals or FOIA managers.  OIP will continue to offer virtual training sessions that will be taught in real-time by OIP instructors.  We are pleased to announce these virtual training courses, which are also available on OIP’s Eventbrite page.

The courses and dates scheduled for the remainder of Fiscal Year 2023 are:

Introduction to the Freedom of Information Act
April 4, 2023

Processing a Request from Start to Finish
April 12, 2023

Procedural Requirements and Fees Training
May 3, 2023

Litigation Workshop
May 10, 2023

Administrative Appeals, FOIA Compliance, and Customer Service
May 17, 2023

Exemption 1 and Exemption 7 Training
June 6, 2023

Exemption 4 and Exemption 5 Training
June 21, 2023

Privacy Considerations Training
July 11, 2023

Continuing FOIA Education
July 12, 2023

Read more here.