The FOIA blog

Supreme Court to Hear Exemption 4 Case

Last week, the Supreme Court agreed to hear an Exemption 4 case where the requester, the South Dakota Argus Leader has sought information on the food stamp program - namely how much money the different retailers get from participating in the program.  The retailers via a trade association has attempted to fight the release of the information every step of the way, losing at both the district court and circuit court.  Now, they've asked are received cert at the Supreme Court.  

The Argus Leader has published this summary of the timeline of the case, which really helps to understand the issues involved. 

EPA Denied Stay In Processing Wheeler Emails

The Washington Post has this on the EPA's attempt to not have to process interim EPA Chief Andrew Wheeler's emails until 2022.  A court denied this stay and ordered the EPA to release the documents within the next ten months.  In ordering this processing, the Court rejected the EPA's Eddie Haskell like argument that "we'd love to process these requests, but for some reason we have so many FOIA requests these days that we won't get to them for at least three years."  Notwithstanding this court's decision, I would expect agencies to try this argument more in the upcoming 24 months.

Interior Proposes Updated FOIA Regulations

Even though its largely closed due to a lapse in funding, the Interior Department has published new proposed FOIA regulations.

The new regulations would allow the agency to limit the amount of requests made by a requester in a month to allow for the "equitable" processing of requests for all requesters and would also allow the agency to deny requests it feels do not adequate describe the requested material.

In a vacuum, these sound like fine proposals.  However, the problem for the agency is that they made the proposals in the real world - a world in which it sets out the facts that the number of requests it has received and lawsuits against have skyrocketed since the current administration took office.  Of course, the agency doesn't put forth any numbers into increased funding of FOIA operations or legal assistance, it just implies that the only way to address this increase is to limit the number of requests it takes in monthly.  It also doesn't mention the fact that there are more requests at the agency because of actions the agency has taken that makes the public seek information about what the agency is actually doing.  Finally, the proposals may not be supported by law, which if they go into effect may result in, more FOIA litigation, which the agency implies is what they are trying to curb by proposing the regulations in the first place.

The public has until Jan. 28 to comment on the regulations, assuming Interior is back functioning by then.