FOIA News: ASAP workshop in Minneapolis

The American Society for Access Professionals will host a FOIA/Privacy Act workshop in Minneapolis from September 6 to September 8, 2023. Program and registration information is available here. The registration deadline is August 31, 2023.

FOIA News: Federal FOIA Advisory Committee to meet September 7th

The federal Freedom of Information Act Advisory Committee will meet remotely for the sixth time in its 2022-2024 term on September 7, 2023, from 10am to 1pm, as announced in a notice in today’s Federal Register. The purpose of the meeting will be “to hear about efforts at the State Department to use machine learning for document searches and reviews, and to hear reports from each of the three subcommittees: Implementation, Modernization, and Resources.”

Watch the meeting on the National Archives YouTube channel or register to attend via Webex. Meeting material will be posted here.

FOIA News: Skip the FOIA request

Faster than FOIA: Public records you can find online

Nat’l Press Club

Need to verify the rank of a dead veteran? Wondering about access to New York criminal records? Trying to find the maiden name of a twice-married woman? For journalists, knowing where to look – without waiting on a public information request response – is key. 

Join the National Press Club Journalism Institute to learn from award-winning investigator Caryn Baird, who will present a practical working model of public records research based on her years of experience at the Tampa Bay Times

* * *

Registration is open for this virtual program, which will take place on Friday, Sept. 15, at 11:30 a.m. ET over Zoom.

Read more here.

Court opinions issued Aug. 18, 2023

Watkins Law & Advocacy v. DOJ (D.C. Cir.) -- (1) affirming district’s decision that FBI and DOJ performed adequate searches for records pertaining to veterans prohibited from purchasing firearms due to mental defects, and rejecting appellant’s argument that DOJ should have expanded its search from the Attorney General’s Office to the Office of Legislative Affairs based on results of AG’s searches; and (2) vacating and remanding district court’s decision that Department of Veterans Affairs properly withheld records pursuant to Exemption 5’s deliberative process and attorney-client privileges, because VA’s declaration described the documents at a “very high level of generality” and stated only “in conclusory fashion” that documents documents fell within those privileges.

Brown v. FBI (D.D.C.) -- finding that FBI performed adequate search for witness interviews pertaining to the 2015 San Bernardino attack and that it properly withheld records pursuant to Exemptions 1, 3, 7(C), 7(D), and 7(E).

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

Court opinion issued Aug. 17, 2023

Smartflash, LCC v. USPTO (D.D.C.) -- dismissing complaint for lack of subject matter jurisdiction because underlying FOIA requests were not submitted by plaintiff, but by its attorney, who failed to clearly indicate that the requests were submitted on behalf of his client; rejecting attorney’s assignment of his FOIA rights to plaintiff for jurisdictional purposes because it occurred eight months after the lawsuit was filed.

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

FOIA News: FOIA Engine reveals fascinating tale from FDA FOIA logs

Research Irregularities, A Suicide, and FOIA

By John A. Jenkins, Law Street Media, Aug. 16, 2023

Columbia University’s New York State Psychiatric Institute has a storied research history stretching back to its founding in 1895 as one of the first institutions in the U.S. to integrate teaching, research, and therapeutic approaches to the care of patients with mental illnesses. Its website boasts that the Institute consistently ranks at the top of federally funded mental-health research grants, and calls its research “the leading edge of today’s discoveries in mental health.” Indeed, the numbers speak for themselves.  Currently, almost 500 externally-funded studies with budgets totaling $86 million are underway at the Institute, many of them supported by the federal government. 

Reas more here.

FOIA News: Company's reverse-FOIA suit is "flimsy," argues FDA

FDA Seeks to Toss Lawsuit From Company Lawyer Seeking Anonymity in Facility-Inspection Report

The attorney argues that being linked to the report, which stems from 20 FDA site visits in the spring of 2022, could cause reputational harm and derail the attorney's career.

By Chris O’Malley, Law.com, Aug. 14, 2023

What You Need to Know

• The Food and Drug Administration said the attorney does not have a solid legal basis to remain anonymous.

• A judge in May had temporarily permitted anonymity.

• At issue is what can be disclosed in a Form 483, a report that is the first step in a potential enforcement action.

The U.S. Food and Drug Administration is scoffing at a “Doe” lawsuit filed by a company attorney trying to prevent being identified in an agency inspection report on the grounds disclosure would cause irreparable harm to the lawyer’s reputation and career.

The unusual “reverse FOIA” case, is based on flimsy legal arguments that don’t come close to meeting the narrow public-disclosure exceptions contained in the Food, Drug and Cosmetic Act, the agency asserts in a recently filed motion to dismiss.

“A plaintiff in a reverse-FOIA suit cannot rely on FOIA exemptions to prevent an agency from disclosing information, for the basic reason that FOIA is exclusively a disclosure statute,” the FDA said recently in response to the suit, which was brought in the U.S. District Court for the District of Columbia.

Read more here (accessible with free registration).

Court opinions issued Aug. 10-11, 2023

Aug. 11, 2023

Magassa v. FBI (D.D.C.) -- determining that agency conducted adequate search for records concerning plaintiff and that it properly withheld records pursuant to Exemptions 6, 7(C). 7(E), and 3 in conjunction with the National Security Act of 1947, as amended; further determining that FBI properly relied on Exemption 7(E) in refusing to confirm or deny whether plaintiff appeared on any “watch list” records,

Aug. 10, 2023

Buzzfeed, Inc. v. DHS (D.D.C.) -- in case involving detention records from DHS database, ruling that: (1) Customs and Border Protection properly withheld alien registration numbers pursuant to Exemption 7(C), likening them to social security numbers; (2) CBP did not sufficiently explain how disclosure of anonymized A-numbers or fingerprint identification numbers would compromise anyone’s privacy; and (2) CBP properly relied on Exemption 7(E) to withhold locations of Border Patrol stations, and both parties failed to explain scope of their Exemption 7(E) dispute concerning database definitions.

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

Court opinions issued Aug. 9, 2023

Bonner v. FBI (S.D.N.Y.) -- holding that government properly relied on Exemption 3 to redact records prepared by former FBI agents concerning the detention of terrorist Abu Zubaydah; stating that government’s classified declarations “reflect an unusual and commendable degree of care in the Government's approach to classification and redactions. They reflect, as well, that the redactions to the materials in this case were made judiciously, not excessively, and based on a sophisticated and informed understanding of the ongoing national security threats posed by al Qaeda and its affiliates.”

N.Y. Times v, FBI (S.D.N.Y.) -- in case concerning FBI’s report about “Havana Syndrome,” ruling that: (1) agency failed to sufficiently establish the applicability of Exemptions 7(A) and 7(E), thus warranting in camera review of the report; and (2) agency properly relied on Exemptions 6 and 7(C) to withhold the names and phone numbers of Special Agents, locations of victims and their health information, and identifying information of certain witnesses, none of which plaintiff disputes.

Am. Civil Liberties Union of Mass. v. ICE (D. Mass.) -- determining after in camera review that ICE properly used Exemption 5 or Exemption 7(E) to withhold many, but not all, communications from senior attorneys to trial attorneys counting case descriptions, practice pointers, legal strategies, and other guidance.

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

FOIA News: Umbrella agency rescinds FOIA regulations

The National Foundation on the Arts and the Humanities has issued final rule rescinding its FOIA regulations because each of its constituent agencies “either have adopted their own agency-specific regulations, or are not required to implement [FOIA] regulations.”