Below is our summary of FOIA court decisions and news from last month, as well as a peek ahead to events in June.

Court decisions:

We posted 10 decisions in May, a slight uptick from the eight cases issued in April. The prize for top case of the month goes to the D.C. Circuit for its May 17th decision in Am. Oversight v. HHS, which addressed Exemption 5’s consultant corollary doctrine. In most relevant part, the panel held in a 2-1 vote that communications between agencies and Congress (or their staffs) did not qualify as “intra-agency” records because “each side had an independent stake in the potential healthcare reform legislation under discussion.” In the majority’s view, this crossed the consultant corollary’s parameters established by the U.S. Supreme Court in Department of Interior v. Klamath Water Users Protective Association, 532 U.S. 1 (2001). The dissent opined that the holding was “actually quite breathtaking” and would “chill communications between Congress and the Executive, stymie the working relationship between Congress and the Executive, and inhibit the President’s ability to perform effectively the core Article II duty of recommending legislation to the Congress.”

Top news:

In late May, the House Select Subcommittee on the Coronavirus Pandemic revealed that a former NIH senior advisor to Dr. Anthony Fauci improperly conducted official government business from his private email account and solicited help from the agency’s Freedom of Information Act office to dodge records requests. See, e.g., Liz Jassin, Did NIH officials hide COVID-19 records?, The Hill, May 23, 2024. Additional records released by the Subcommittee indicated that Dr. Fauci’s former chief of staff misspelled names in what appeared to be a deliberate attempt to keep the records from being found in keyword searches used to fulfill FOIA requests. See, e.g., Benjamin Mueller, Health Officials Tried to Evade Public Records Laws, Lawmakers Say, N.Y. Times, May 28, 2024.

Lookahead to June:

June 12, 2024: DOJ/OIP Exemption 4 and Exemption 5 Training

June 13, 2024: The last meeting of the FOIA Advisory Committee for the 2022-2024 term.

June 25, 2024: A panel discussion with government officials about GAO’s backlog report: Beat the Backlog: Decoding the GAO FOIA Report to Make a Difference in the Last Quarter of Your Program. Hosted by OPEXUS.