FOIA Advisor

View Original

Commentary: 2023 FOIA news in review

Allan Blutstein

As 2024 gets underway, the FOIA Advisor staff is pleased to provide a summary of the most notable FOIA developments that occurred outside the courtroom in 2023. We will discuss our top 2023 court decisions in a forthcoming post.

Legislation

The 118th Congress is off to a historically slow start, passing fewer than two dozen bills in its first year—none pertaining to the Freedom of Information Act. Several attempts were made, however.

  • On February 16, 2023. U.S. Senator Marco Rubio (R-FL) reintroduced the First Opportunity for Information to Americans Act of 2023. First introduced in June 2022, this legislation would bar agencies from releasing FOIA-requested records to foreigners and certain foreign entities.

  • On March 30, 2023, U.S. Senators Thomas Tills (R-NC) and Elizabeth Warren (D-MA) and others re-introduced the Financial Regulators Transparency Act of 2023, which would extend the FOIA to regional Federal Reserve banks. On December 21, 2023, the reserve banks announced that they had voluntarily adopted a policy for public requests for information effective January 1, 2024

  • On June 6, 2023, U.S. Senators Chuck Grassley (R-Iowa), Dianne Feinstein (D-Calif.), and Peter Welch (D-Vt.) introduced the Open and Responsive Government Act, which aimed to restore Exemption 4’s National Parks test for confidential commercial information. The bill also attempted to reinforce the law’s presumptions of openness and transparency by underscoring any information outside of the scope of FOIA’s nine exemptions should be publicly available. 

  • On June 14, 2023, Congressman Jamie Raskin (MD-08) and Senator Ben Cardin (D-MD) introduced the Private Prison Information Act of 2023, which would require all U.S. government agencies comply with FOIA requests relating to private prisons, jails or detention facilities, including immigration detention facilities.

  • On June 27, 2023, a House appropriations bill for the Department of Defense was introduced that would prohibit the disclosure of certain records of service members without their consent. See Sec. 8139. The bill passed the House on September 28, 2023.

Regulatory updates

By our count, four agencies proposed changes to their FOIA regulations in 2023 that have not yet been finalized: Defense Nuclear Facilities Safety Board; Office of Management and Budget; Peace Corps; and the Postal Regulatory Commission.

Seven agencies issued final rules amending their FOIA regulations in 2023: Department of Commerce; Department of Defense; Department of State; EPA, Office of the Director of National Intelligence; Office of the Intellectual Property Enforcement Coordinator (EOP); and th Office of the.United States Trade Representative

Federal FOIA Advisory Committee

On June 8, 2023. the Federal FOIA Advisory Committee unanimously recommended that DOJ’s Office of Information Policy “issue guidance stating that whenever an agency withholds information pursuant to Exemption 5, the agency should identify the corresponding privilege(s) invoked.” The Committee is expected to vote on additional recommendations before the end of its term in June 2024.

Other agency updates

  • The Department of Justice announced on March 2, 2023, that federal agencies had received a record-high total of 928,316 requests in fiscal year 2022.

  • On March 13, 2023, nearly one year after the Attorney General issued a customary FOIA memorandum, DOJ’s Office of Information Policy released guidelines concerning the foreseeable harm standard enacted in 2016 and applying a presumption of openness.

  • FOIAonline, a request platform operated by the EPA, was decommissioned on September 30, 2023. At its height, 22 agencies used the platform. See related article here.

  • In October, the Department of Justice added a search tool to FOIA.gov that “helps the public more quickly locate commonly requested information.”

Interesting stories

We generally do not feature stories about the filing of FOIA requests or lawsuits, or stories that are based on records obtained via FOIA. But some are too quirky or consequential to ignore. Here are a few that captured our attention in 2023.