The FOIA blog

And Now For Something Different

I just want to take a moment to let all of you know that I am leaving private practice and returning to government service.  As a result, the FOIA blog won't continue in its present form --  there won't be as many updates on this blog in the future and they'll be much more Sgt. Joe Friday "just the facts." 

I've been at this blog for nearly 13 years, back when there was a high-2 and a low-2 FOIA Exemption.  Since this blog has been in existence, the Supreme Court has stated that corporations do not have privacy protection like people do, most FOIA releases have gone from paper sent through the mail to compact discs to digital downloads of documents.  My point being that FOIA law consistently changes -- be it via legislation, court decisions or changes of administration.  The FOIA is never boring and its never easy (and working in FOIA should never be considered as a punishment).  And the conflicts -- (requester v. agency, agency FOIA Office v. agency Program Office, submitter of information v. agency v. requester) continue as they have since the act was introduced a half century ago.  It has been my pleasure to provide my take on all of these issues over the past decade or so.  Before the advent of Twitter, blogs were one of the few ways to put your views out into the public. 

Thanks for surfing by here and reading my posts.  I loved hearing from all of you who have read the blog -- I also appreciated the tips and ideas many of you have given me.  I'm sure you'll be hearing from me down the line...

Supreme Court Hears Exemption 4 Argument

The U.S. Supreme Court heard arguments on Exemption 4 yesterday - here is the requester's report on the proceedings which will largely depend on the meaning of the word confidential under the FOIA as the Supreme Court sees it.

Exemption 4 To Be Argued At Supreme Court 4/22/19

A rare occurrence will be happening next week.  The Supreme Court will hear a FOIA case and the issue will be one that the Supreme Court has never ruled on - FOIA Exemption 4.  For years, decisions by the Court of Appeals for the District of Columbia have been followed to set the rules on Exemption 4.  The Supreme Court will weigh in on the exemption now - and one of the parties to the case (the requester) has published this piece.

Candidate Proposes FOIA for Congress

The Washington Examiner has this on a recent Democratic Presidential forum in which candidate Julian Castro proposes making Congress subject to the FOIA.  While it is an unlikely occurrence, it would increase transparency in government.  Currently only portions of the Executive Branch are covered by the law.

FOIA.Gov Portal Not Forwarding Requests To Agencies

Here's a Sunshine Week celebratory story.  I made a request last month to an agency via FOIA.Gov (per the agency's instructions).  I was assigned an ID for the request from FOIA.Gov.  I checked the status today and was told that none of the requests from the portal were being forwarded to the agency, which of course defeats the whole purpose of the portal.  Somewhere, Joseph Heller is laughing at us.

FBI Building Appraisal and Offers Ordered Released

The United States District Court for the District of Columbia has ordered the General Services Administration to release its appraisal of the value of the FBI's Headquarters building and any offers it received for the building according to Federal News Network.  The Court found that the documents did not meet the criteria of the deliberative process privilege as they weren't pre-decisional and were created after the GSA's decision to not move forward on its plan for the FBI building had already been made.

 

FBI Loses Exemption 7E Glomar Case

The FBI has lost its novel attempt to use a Glomar response for Exemption 7E.  The case brought by the Reporters Committee for Freedom of the Press in the District Court for the District of Columbia found that the FBI's utilization of a Glomar response (can neither confirm not deny that records exist) for records pertaining to instances the FBI used fake documentary film crews as a law enforcement technique was inappropriate.  The FBI will now have to either confirm that records exist (and process them accordingly) or state that there are no records.  The case can be found here.

This is the second Glomar related case lost by the Department of Justice in the past year - last year the Office of Legal Council lost a bid to invoke a Glomar response with respect to Exemption 5.  [Ed. Note - I was the attorney of record for the plaintiff on that decision].

HUD FOIA Tracking System Down

ProPublica has this on HUD's contract for the system for processing and tracking FOIA requests.  The contract ran out during the government shutdown and hasn't yet been renewed - so the agency is scrambling to process and track FOIA requests.  One would think that managing an agency and its FOIA program should be easier than brain surgery, however it appears that this may not be the case. 

Supreme Court Sets Date for Exemption 4 Arguments

The Supreme Court will hear arguments on April 22 in the Exemption 4 case brought by an association attempting to stop the government from releasing information to the Argus Leader newspaper.  The Argus Leader has additional details here.

Nestle Trade Secrets Protected Pursuant To Exemption 4

Courthouse News Service has this on an attempt to learn more about Nestle's use of water from public lands -- a District Court in the District of Columbia ruled that the global giant's trade secrets were protected pursuant to Exemption 4 of the FOIA; however, names of some of its employees needed to be released in the public interest following a balancing test of Exemption 6. 

Of course, Exemption 4 may see some changes in the upcoming year as it is headed to the Supreme Court in the coming months.