The Washington Post has this on the DC Circuit's decision that students can qualify for the Educational Institution Fee Status under the FOIA - prior to this decision only professors usually were granted this fee status.
A local Washington D.C. citizen and neighborhood commissioner has sued the Executive Office for United States Attorneys (EOUSA) over its failure to find responsive material concerning her request on D.C. crime statistics. What makes matters worse in this case is that after filing her request, the EOUSA told the plaintiff that there was a fee for it to conduct a search for responsive records. After raising money via bake sales and other activities, the EOUSA said they had no records after all. It's as if there is no filter at EOUSA thinking about how its responses look to the public - it clearly should have told the requester there were no records prior to making the requester raise and pay exorbitant fees. Now EOUSA prolongs the matter and finds itself justifying both its fee collection and no records response. More can be found here at the Washington City Paper.
Those that follow FOIA know that reports and recommendations are playing an increasingly more important role in shaping the direction of future FOIA policy. The last few weeks have seen the release of some of these. Namely, last month the FOIA working group out of OGIS released its final report and a recommendation to the Archivist that OMB update its decades old guidance on FOIA fees. Additionally, the Department of Justice has released a summary and assessment of 2016 FOIA Officer Reports.
Fortune reports on efforts from agriculture commodity groups to get Congress to exempt the programs that help the marketing of their products from being subject to FOIA. The House Agriculture Committee recently adopted language promoted by the agricultural community. The programs are funded by industry but overseen by the Department of Agriculture, which is how FOIA is involved. The programs include the popular "Got Milk" and "Pork, the other white meat". Basically the agriculture industry would like the help from the government but also want the government's help to not be subject to the FOIA.
FOIA legislation has passed both the House of Representative and the Senate. The problem is that the bills that passed in each side of Congress were different. The question now becomes who gives? Will the two sides meet and pass a compromise bill or will one side pass the others bill? Government Executive has this on the state of the legislation.
WhoWhatWhy has this article about a FOIA request it made concerning the status of Marathon Bomber Dzhokhar Tsarnaev. The request attempted to learn about his placement in Special Administrative Measures (SAMs). DOJ refused to confirm or deny that he was even in SAMs, even though the Prison confirmed it in a request the publication made to interview Tsarnaev. I'm interviewed in the story, explaining that DOJ needs to balance the inmates privacy against any public interest in the requested information. It doesn't appear that this balancing test was done.
Even though I prefer Veep and Vinyl, it appears that a request has come into the White House about the President's viewing of Game of Thrones. Ars Technica writes about the request and its likely rejection, quoting yours truly. My guess is this request may be granted under a Selena Myers' administration.
A panel of judges in the Ninth Circuit case, Animal Legal Defense Fund v. FDA, has urged the entire court to go en banc to discuss the standard of review the circuit uses in FOIA cases. Currently, the Ninth Circuit reviews FOIA cases under the "clear error" standard of review. Other circuits, such as the District of Columbia Circuit review under the same de novo standard used by district courts in making summary judgment decisions.
In urging en banc review, The panel explained that because of the Ninth Circuit standard of clear error they had no choice but to affirm the lower court decision, However if the standard of review had been different, they would have reached a different result because each side had presented experts that showed a genuine disputed issue of material fact- under the de novo summary judgment standard of review, the panel said they would have remanded the case for further findings rather than affirm the lower court decision.
The Federation of American Scientists (FAS) has this article concerning the DOD Chief FOIA Officer Report on the agency's FOIA Operations. One item of interest is that some requesters have monopolized certain FOIA Offices within the DOD and as the FAS article discusses, the law doesn't have anything in it to specifically deal with this situation.
This is an item of concern for both the requester and agency FOIA communities as it can affect how quickly all requesters get material and the workloads of agencies. I believe a fact finding discussion of this topic either at OGIS or during a Congressional hearing would be a positive development for FOIA.
The FBI has lost a case that involves a rather strange fact pattern. In a multi-plaintiff case that was fully briefed and argued before the Court, the FBI announced that it had changed its policy on the processing of FOIA processing notes (the policy went form categorical denial to one of processing on a case by case basis). However, the FBI's policy change happened well before the Court had issued its opinion on the matter. Thus, the Court has ruled that the FBI must follow the rules in enunciated in Maydak and process, the notes in the case under the Court's previous decision (and can't invoke new exemptions this time around). The Court did allow the FBI to re-brief any withholdings that implicate national security.
The takeaway from this opinion is that the government must let a Court know of any policy changes that are related to the issues before it as soon as the policy changes become effective.