FOIA News: OIP issues guidance on SOPs

On the last Friday of August, the Department of Justice’s Office of Information Privacy issued guidance on “Standard Operating Procedures for FOIA Offices.”

Move over best-selling beach books.

Court opinion issued Aug. 24, 2023

Thompson v. DOJ (W.D.N.C.) -- denying government’s motion to dismiss plaintiff’s claim that the Environmental & Natural Resources Division had adopted a pattern or practice of delaying responses to plaintiff’s FOIA requests; rejecting government’s argument that because all of plaintiff’s requests had received a response, plaintiff’s pattern-or practice claim was moot; noting government’s delays in responding to plaintiff’s requests and to other FOIA requesters, as indicated in DOJ’s annual FOIA reports.

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

FOIA News: Army Athletics denies being a federal agency, but agrees to fulfill FOIA request following lawsuit

ARMY ATHLETICS TURNS OVER FINANCIAL RECORDS FOLLOWING FOIA SUIT

By Daniel Limit & Eben Novy-Williams, Sportico, Aug. 24, 2023

Army West Point Athletic Association, the legal entity that administers the military academy’s Division I sports programs, has begun turning over the first batch of what could eventually be thousands of pages of financial and contractual records that it has previously refused to make public.

The academy’s intercollegiate sports arm had long snubbed Freedom of Information Act requests, claiming it is not subject to federal disclosure laws.

Army’s change in position follows a Sportico reporter’s FOIA lawsuit in February against West Point and the AWPAA, after the entities denied requests for numerous categories of athletic department records including NCAA revenue and expense reports, employee contracts and the athletic association’s agreements with third parties like Learfield and Nike.

Read more here.

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).