FOIA News: Academic explores FOIA decisions of SCOTUS

A professor at the University of Georgia explores the U.S. Supreme Court’s FOIA decision-making in a forthcoming work entitled “Government Transparency and Judicial Deference: An Outcomes-Based Overview of Freedom of Information Act Litigation in the U.S. Supreme Court.” The author, Gbemende Johnson, summarizes her work in an abstract recently posted by SSRN:

This chapter explores U.S. Supreme Court decision-making in Freedom of Information Act Litigation. While few FOIA requests result in litigation, the Supreme Court plays a central role in providing guidance to agencies and requesters regarding executive branch autonomy over disclosure decisions, and the scope of transparency afforded by the Freedom of the Information Act. Overall, I find that the U.S. Supreme Court exhibits a substantial degree of deference to agency interpretations of the FOIA.

See full abstract here.

Court opinion issued May 16, 2023

Louise Trauma Ctr. v. DHS (D.D.C.) -- determining that plaintiff was both eligible and entitled to attorney’s fees and costs, but reducing requested fee award from $156k to $106k because: (1) plaintiff failed to show that the rate sought by its attorney rate was consistent with the prevailing market rate for similar legal services; (2) much of the attorney’s work was “needless, duplicative, or inefficient,” and the billing records lacked adequate details; and (3) plaintiff’s request for $45k for fees spent on its fee petition was unreasonable and would constitute an “unsupportable windfall.”

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

FOIA News: Federal Court Rejects FBI’s Attempt To Glomar Its Way Out Of A Trump-Related FOIA Lawsuit

Federal Court Rejects FBI’s Attempt To Glomar Its Way Out Of A Trump-Related FOIA Lawsuit

By Tim Cushing, Techdirt, May 16, 2023

The Massachusetts branch of the ACLU decided to ask around to see if any of the many agencies generating classified documents had a copy of this supposed standing order from the President. It sent FOIA requests to the CIA, Defense Department, Office of the Director of National Intelligence (ODNI), NSA, DHS, the National Reconnaissance Office, and the National Geospatial-Intelligence Agency (NGA). It also made the same request to the FBI, shortly after it performed its raid on Trump’s residence.

The DHS, NRO, and NGA told the ACLU they had no responsive documents. Other recipients apparently decided to let the FBI and its legal counseI answer for them. And that “answer” came in the form of a Glomar response: a refusal to confirm or deny the existence of this standing order. The ACLU sued.

And it has won, at least in terms of the FBI’s non-response response. The federal court handling the FOIA litigation says the FBI can’t play dumb here. Either the order exists (it doesn’t) or it doesn’t (it doesn’t), and the FBI — answering for other agencies — needs to tell the ACLUM whether or not the order exists. (It doesn’t.)

Read more here.

See also Court Opinions Issued May 11, 2023.

Court opinion issued May 12, 2023

Lawyers’ Comm. for Civil Rights v. OMB (D.D.C.) -- on renewed summary judgment, ruling that OMB sufficiently established that it properly relied upon Exemption 5’s deliberative process privilege to withhold records concerning its decision to “halt its initiative for the collection of pay data from employers by the [EEOC]”; further finding that OMB satisfied the foreseeable harm standard by linking identifiable harms to specific information, and that it established that it produced all reasonably segregable information.

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

Court opinion issued May 11, 2023

Am. Civil Liberties Union of Mass. v. CIA (D. Mass.) -- concluding that CIA, ODNI, DOD, and NSA improperly issued Exemption 7(A) Glomar responses in connection with plaintiff’s request for President Trump’s alleged standing order declassifying documents taken from the Oval Office; finding that FBI did not sufficiently explain how its criminal investigation would be harmed if defendants searched for responsive records, particularly in light of the fact that three other intelligence agencies had already conducted searches and issued “no records” responses and that President Trump and multiple former Trump administration officials had issued statements on the matter.

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

FOIA News: New OGIS post on portal communications

Ensuring Effective Portal Communication with Requesters: Even When They’re on Vacation!

By Kimberlee N. Ried, FOIA Ombudsman, May 10, 2023

OGIS has observed recently that agencies are increasingly using portals to send response letters and records to requesters. OGIS applauds this approach as portals are faster than U.S. postal mail and more secure than email. However, OGIS encourages agencies to consider the length of time requesters have to access these letters and responsive records. We recently heard from a requester who was on vacation and when they returned, they were unable to access the agency’s FOIA response letter and responsive records which had been available in the portal for 10 days.

Read more here.

FOIA News: Senate confirms new Archivist

National Archives leader confirmed amid turmoil over Trump probe

By Farnoush Amiri, AP, May 10, 2023

President Joe Biden’s nominee to head the National Archives was confirmed Wednesday by the Senate after a months-long partisan battle over the agency’s role in the investigation into sensitive documents seized at Donald Trump’s Florida home.

Colleen Shogan, a political scientist, was confirmed as archivist of the United States in a 52-45 vote, gaining some bipartisan support after a nearly yearlong delay.

With a long career spanning work at institutions such as the Congressional Research Service, the Library of Congress and the White House Historical Association, Shogan has sought to assure senators she will not bring a partisan mindset to the job.

Read more here.

Court opinion issued May 8, 2023

Am. Civil Liberties Union of Mass. v. ICE (D. Mass.) -- in cases concerning communications of seven agency officials regarding indictment of state judge and court officer for obstruction of justice, (1) denying agency’s renewed motion for summary judgment because it was prematurely filed and did not comport with local rules; and (2) ordering agency to provide additional information concerning its search for text messages on government-issued telephones.

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

Court opinion issued May 3, 2023

Cato Inst. v. DOD (D.D.C.) -- holding that plaintiff’s request for “any records from any . . . component pursuant to” Directive 5300.27 was not reasonably described, and rejecting plaintiff’s attempt in litigation to reframe the scope of its request; further rejecting plaintiff’s argument that the Department failed to notify plaintiff that its request was too vague, as required by Department regulations.

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

FOIA News: CFO Council Publishes White Paper on FOIA Reference Model

New White Paper On FOIA Reference Model From Chief FOIA Officer Council Technology Committee’s Working Group

Dep’t of Justice, Office of Info. Pol’y (May 3, 2023)

A white paper issued by the Chief FOIA Officer (CFO) Council Technology Committee’s FOIA Reference Model Working Group has been posted to FOIA.gov.  The white paper highlights work done to create a Reference Model of the FOIA process and describes possible uses for the model.  The FOIA Reference Model, created by the MITRE Corporation (MITRE), provides a detailed summary and mapping of common FOIA functions across agencies.  The Technology Committee’s FOIA Reference Model Working Group reviewed the model for consistency with the FOIA statute, agency regulations, Office of Information Policy guidance, Office of Government Information Services findings, and recommendations from the FOIA Advisory Committee.  The FOIA Reference Model itself is publicly available on MITRE’s website.

The FOIA Reference Model Working Group white paper outlines the possible uses for the FOIA Reference Model, which include:

1. Helping agencies to articulate their needs and helping vendors understand agencies’ needs when developing FOIA technologies;

2. Serving as a resource to facilitate assessment of FOIA programs to identify gaps or opportunities for improved efficiency, review standard operating procedures, and define staff roles within stages of the FOIA process; and,

3. Increasing stakeholder knowledge of the intricacies of the FOIA process.

Agency FOIA professionals, agency FOIA leadership, FOIA technology developers, and members of the public are encouraged to review this white paper and the FOIA Reference Model and to use these tools to improve FOIA processes and technologies that may increase efficiency for FOIA programs.

For additional information about the CFO Council’s work, visit the Council’s page on FOIA.gov.

Read the original post here.