Monthly Roundup: March 2024

Below is our roundup of FOIA court decisions and FOIA news from March 2024, as well as a peek ahead to April.

Court decisions:

We posted 27 decisions in March, the most active month of the year thus far. Of note, the D.C. Circuit’s decision in Leopold v. DOJ (Mar. 1, 2024) reminded agencies that they must sequentially analyze exemptions and foreseeable harm, which in this Exemption 8 case the agency failed to do. Although the Circuit stated in passing that the foreseeable harm requirement applied to “all exemptions, except Exemption 3,” a more recent district court opinion correctly pointed out that foreseeable harm would “always” be present when the government properly invokes Exemption 1. James Madison Project v. Office of the Dir. of Nat'l Intelligence (D.D.C. Mar. 26, 2024).

In the interval between the above two cases, the court in Inst. for Energy Research v. FERC (D.D.C. Mar. 13) found that FERC had reasonably defined a “record” as a single text message (as opposed to “threads”) given plaintiff’s request for specific text messages containing certain terms. In reaching its decision, the court relied on DOJ/OIP’s 1995 guidance on determining the scope of a FOIA request.

Top news:

On March 4, 2024, the Department of Justice’s Office of Information Policy (DOJ/OIP) announced that federal agencies received more than 1.1 million FOIA requests in fiscal year 2023, surpassing the government’s previous year’s total by nearly 30 percent. As FOIA Advisor reported the day before, the government’s backlog of requests increased slightly from 206,720 to 208,282.

The government released two major reports during ‘Sunshine Week,” which was observed from March 10, 2024, to March 16, 2024. First, on March 12, 2024, DOJ/OIP issued its annual FOIA Litigation and Compliance Report, which indicated among other things that 834 FOIA lawsuits had been filed in calendar year 2023. On the next day, March 13, 2024, the U.S. Government Accountability Office released an 80-page report entitled Freedom of Information Act: Additional Guidance and Reliable Data Can Help Address Agency Backlogs. In sum, GAO recommended that DOJ/OIP develop new guidance to ensure FOIA backlog reduction plans include clear goals, milestones, and timelines.

April lookahead:

April 3: DOJ training, Introduction to the Freedom of Information Act.

April 4: Meeting of the federal FOIA Advisory Commitee.

April 9: D.C. Circuit oral argument in Connell, III v. CIA, 23-5118. The lower court’s decision is here.

April 10: DOJ training, Processing a Request from Start to Finish.

April 17: Meeting of the Chief FOIA Officers Council.

Monthly Roundup: Feb. 2024

Below is our roundup of FOIA court decisions and FOIA news from February 2024, as well as a peek ahead to March.

Court decisions:

We posted 16 decisions issued in February. Of note, the U.S. District Court for the District of Columbia held in Protect the Public’s Trust v. IRS that plaintiff was eligible for attorney’s fees even though it never received responsive documents. The court reasoned that the IRS thrice refused to search for requested record and the agency changed its position only after being sued and ordered to file a dispositive motion. In AMA Sys. v. FDA, the U.S. District Court for the District of Maryland ruled that because all information protected under Exemption 4 is barred from disclosure under the Trade Secrets Act, the foreseeable harm test was inapplicable. This appears to be the first court to accept that argument, and it also appears to be inconsistent with DOJ/OIP’s 2023 guidance to agencies.

On February 16, FOIA Advisor published its list of notable court decisions issued in calendar year 2023.

News:

We were saddened to learn of the death of Dan Metcalfe, co-founder of DOJ/OIP.

Dozens of agencies posted their annual FOIA reports ahead of the March 1st posting deadline. Reports posted by DOJ, DOD, NARA, and HHS showed sizable increases in the volume of requests received. FOIA Advisor will post a summary of the overall data as soon as DOJ makes it available via FOIA.gov.

March lookahead:

March 5, 2024: FOIA Advisory Committee meeting.

March 11, 2024: Agencies are required to post their 2024 Chief FOIA Officer Reports online.

Sunshine Week is March 10 to March 16, 2024. Several federal agencies will host special events:

• March 11, 2024: Dep’t of Justice, annual Sunshine Week celebration, 10am-noon.

• March 13, 2024: Dep’t of Commerce, “The Power of Open Government,” 9am-1:30pm.

• March 14, 2024: Nat’l Archives & Records Admin., “Artificial Intelligence: The Intersection of Public Access and Open Government,” 1pm.

Monthly Roundup: Jan. 2024

Welcome to our first “Roundup.” At the beginning of each month, we’ll highlight the FOIA activity we’ve observed in the previous month, just in case you missed it. Additionally, we’ll point out what’s ahead in the 4 to 5 weeks,

Court decisions: We posted 16 decisions in January. Of note, the court in Children’s Health Def. v. FDA (D.D.C.) reminded us that a plaintiff-friendly judge in the Northern District of Texas has paralyzed the FDA’s FOIA operations with what might be the most burdensome production schedule in the history of FOIA litigation (180k pages per month). The CDC also has been ensnared by the same district court, which recently held that it would not be unreasonably burdensome for the agency to process 7.8 million “free text” messages over the next 12 months. See Freedom Coal. of Doctors for Choice v. CDC (N.D. Tex.).

OGIS: On January 25th, in a blog post discussing the history of the Glomar response, OGIS inexplicably expressed its support for a FOIA Advisory Committee recommendation to eliminate that term from agency lexicons, notwithstanding opposition from DOJ and others.

DOJ: On January 23rd, OIP solicited nominations for Sunshine Week FOIA awards for agency personnel.

Other news: Requesters filed 59 lawsuits across the country in January, according data posted by the FOIA Project. The most frequent filer was the Center for Immigrations Studies, with five cases.

February lookahead:

• On February 6th, OIP will host an Advanced Freedom of Information Act training for federal employees and contractors. Despite being virtual, it is listed as “sold out.”

• On February 14th, the D.C. Circuit will hear oral argument in Cabezas v. FBI. We will post a reminder the day before.

• On February 16th, the D.C. Circuit will hear oral argument in Assassination Archives & Research Ctr. v. DOJ. We will post a reminder the day before.

• By the end of the month, we expect most agencies to have posted their annual FOIA reports for FY 2023, which are due no later than March 1st.