The Act adds a provision stating that an agency may withhold information only if it “reasonably foresees that disclosure would harm an interest protected by” one of the FOIA exemptions or if “disclosure is prohibited by law.” 5 U.S.C. § 552(a)(8)(A)(i). Agencies also must “consider whether partial disclosure of information is possible” and “take reasonable steps necessary to segregate and release nonexempt information.”

FOIA generally requires the public disclosure of federal agency records upon request. See 5 U.S.C. § 552(a)(3). Agencies may, however, withhold documents that fall under one of nine exemptions.

With the House Committee on Oversight and Reform and the Senate Committee on the Judiciary raising concerns over agencies’ FOIA compliance, the U.S. Department of Justice has responded with FOIA guidelines and related testimony before the Senate Committee on the Judiciary.The past two months have seen Congress and the U.S. Department of Justice (DOJ) focus significant attention on both the importance of and ways to improve the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552. For example, on March 14, DOJ kicked off its 12th annual celebration of Sunshine Week.

en what exactly happened with JLI's PMTAs, it is not difficult to imagine that an agency could assert pretextual or piecemeal grounds for an action, withhold records that may undermine those asserted grounds, and attempt to more-or-less insulate its action from meaningful review. And it is not farfetched to think that an agency could be overeager to use the deliberative process privilege to shield records that may lead to scrutiny of its actions. That is reflective of the reasons why we have FOIA and the APA. Congress intended these laws, respectively, "to assure the availability of Government information necessary to an informed electorate" and to "require[] adequate, fair, effective, complete, and just determination of the rights of any person in properly invoked proceedings." Juul Labs, Inc. v. Food & Drug Admin., Case No. 22-1123 (D.C. Cir.). 21 U.S.C. § 387j(c). 5 U.S.C. § 706(2)(A); 21 U.S.C. § 387l(b). Juul Labs, Inc. v. Food & Drug Admin., Case No. 1:22-cv-02853 (D.D.C.).See 5 U.S.C. § 552(a)(4)(B). Jennifer Maloney, FDA to Order Juul E-Cigarettes Off U.S. Market, Wall St. J. (June 22, 2022), https://www.wsj.com/articles/fda-to-order-juul-e-cigarettes-off-u-s-market-11655904689. Generally speaking, a memorandum to file is an internal memorandum, without designation of a specific recipient, that can be used to document contemporaneous observations or impressions for future reference. 21 U.S.C. § 387j(c)(2)(A).Id. § 387j(c)(4). H.R. Rep. No. 111-58, at 39 (2009). Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 5 U.S.C. § 552(a)(3)(A).Id. § 552(b)(5). U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 141 S. Ct. 777, 785–86 (2021). Am. Mail Line, Ltd. v. Gulick, 411 F.2d 696, 703 (D.C. Cir. 1969). H.R. Rep. No. 114-391, at 10 (2016). FOIA Improvement Act of 2016, Pub. L. No. 114-185, § 2(1)(D), 130 Stat. 538, 539 (codified at 5 U.S.C. § 552(a)(8)(A)(i)(I)). Under this amendment, agencies may alternatively withhold exempt records if "disclosure is

l analyze which portions of the document are purely factual and order the agency to release those segregable portions if possible.Should the court deem HHS’ redactions in the rescheduling letter as justified, it would set a precedent for broader governmental discretion in withholding information, potentially limiting access to crucial regulatory insights that shape legal and business strategies.Conversely, a ruling against HHS could usher in great transparency, offering legal professionals and entrepreneurs more detailed guidance on navigating the evolving cannabis regulatory landscape. This outcome would not only affect how attorneys advise clients on compliance and risk management but also influence investment and operational decisions for business owners.Ultimately, the court’s ruling will either reinforce the veil of administrative deliberations or peel back layers, significantly affecting how the legal community interprets and responds to shifts in federal policy and enforcement. 5 U.S.C.A. § 552 et seq. 5 U.S.C.A. § 552(b)(5). Department of Health and Human Services Letter to Administrator of the DEA Regarding Marijuana Rescheduling, Department of Health and Human Services (Aug. 29, 2023), available at https://s3.documentcloud.org/documents/24084026/hhs-dea-letter-marijuana.pdf. See Jaeger, Top Federal Health Agency Releases Highly Redacted Marijuana Scheduling Recommendation Letter to DEA, Marijuana Moment (Oct. 25, 2023), available at https://www.marijuanamoment.net/top-federal-health-agency-releases-highly-redacted-marijuana-scheduling-recommendation-letter-to-dea/.N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (hereinafter “Sears”); see also FTC v. Grolier Inc., 462 U.S. 19, 26 (1983); Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987). 5 USCA § 551(1).United States Dep’t of Justice v. Julian, 486 U.S. 1, 18 n.1 (1988) (hereinafter “Julian”) (“the most natural meaning of the phrase ‘intra-agency memorandum’ is a memorandum that is addres

these discussions is crucial for agencies to function effectively, as it allows for diverse viewpoints to be aired and debated without fear of external scrutiny or backlash. However, the Supreme Court has held that the primary purpose of FOIA is disclosure, not secrecy, and that FOIA exemptions “are to be narrowly construed with all doubts resolved in favor of disclosure.”HHS’ rescheduling recommendation letter qualifies as an inter-agency memorandum and could meet both requirements of the deliberative process privilege in that the letter is deliberative, and the factual information it contains could be inextricably linked to the agency’s deliberations. However, precedent suggests that the court could analyze the contents of the letter and order HHS to release the purely factual portions to the public. Time will tell how the court will maintain this important balance.Stay tuned to Troutman Pepper’s Cannabis Communications newsletter for updates on all things cannabis and rescheduling. 5 U.S.C.A. § 552 et seq. 5 U.S.C.A. § 552(b)(5). Department of Health and Human Services Letter to Administrator of the DEA Regarding Marijuana Rescheduling, Department of Health and Human Services (Aug. 29, 2023), available at https://s3.documentcloud.org/documents/24084026/hhs-dea-letter-marijuana.pdf. See Jaeger, Top Federal Health Agency Releases Highly Redacted Marijuana Scheduling Recommendation Letter to DEA, Marijuana Moment (Oct. 25, 2023), available at https://www.marijuanamoment.net/top-federal-health-agency-releases-highly-redacted-marijuana-scheduling-recommendation-letter-to-dea/.N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975) (hereinafter “Sears“); see also FTC v. Grolier Inc., 462 U.S. 19, 26 (1983); Martin v. Office of Special Counsel, 819 F.2d 1181, 1184 (D.C. Cir. 1987). 5 USCA § 551(1).United States Dep’t of Justice v. Julian, 486 U.S. 1, 18 n.1 (1988) (hereinafter “Julian”) (“the most natural meaning of the phrase ‘intra-agency memorandum’ is a memorandum that is addres

It means that your standard form FOIA SEC rule references are probably soon to be out of date.Most of the rules describe the procedures and fees for requesting documents. For those seeking to protect the confidentiality of documents, Section 200.80(c) of the new rules provides that a “request for records may be denied to the extent the exemptions in 5 U.S.C. 552(b) apply to the requested records”—that would include Exemption 4 contained in 5 U.S.C. 552(b)(4) for “[t]rade secrets and commercial or financial information obtained from a person and privileged or confidential,” on which Confidential Treatment Requests commonly rely—and the “(A) Commission staff reasonably foresees that disclosure would harm an interest protected by the applicable exemption; or (B) The disclosure of the requested records is prohibited by law or is exempt from disclosure under 5 U.S.C. 552(b)(3)” As a technical matter, note that the revisions eliminate certain provisions in the SEC’s current FOIA regs that were considered unnecessary because they simply repeated information contained in the FOIA statute. Among the provisions eliminated were the nine categories, previously set forth in Section 200.80(b) of the superseded regs, that are exempt from disclosure under 5 U.S.C. 552(b).

Most of the rules describe the procedures and fees for requesting documents. For those seeking to protect the confidentiality of documents, Section 200.80(c) of the new rules provides that a “request for records may be denied to the extent the exemptions in 5 U.S.C. 552(b) apply to the requested records”—that would include Exemption 4 contained in 5 U.S.C. 552(b)(4) for “[t]rade secrets and commercial or financial information obtained from a person and privileged or confidential,” on which Confidential Treatment Requests commonly rely—and the “(A) Commission staff reasonably foresees that disclosure would harm an interest protected by the applicable exemption; or (B) The disclosure of the requested records is prohibited by law or is exempt from disclosure under 5 U.S.C. 552(b)(3)” As a technical matter, note that the revisions eliminate certain provisions in the SEC’s current FOIA regs that were considered unnecessary because they simply repeated information contained in the FOIA statute. Among the provisions eliminated were the nine categories, previously set forth in Section 200.80(b) of the superseded regs, that are exempt from disclosure under 5 U.S.C. 552(b).

Section 319 of the Clean Water Act does not require state or local government entities to make any information available to the public, or to disclose information to anyone other than the EPA. As such, it should not bar the application of Texas Agriculture Code Section 201.006 to any Public Information Act request for water quality management plan information.Freedom of Information Act and Clean Water ActThe federal Freedom of Information Act, 5 U.S.C. § 552, (FOIA) could be a mechanism for public access to the information contained in water quality management plans, but only if that information has been provided to a federal agency. FOIA only applies to “agencies” as defined in the Administrative Procedure Act, 5 U.S.C. § 551(1), and FOIA, 5 U.S.C. § 552(f).

The Ninth Circuit today issued its decision in Animal Legal Defense Fund v. USDA. Here's the court's summary of the decision:The panel reversed in part and affirmed in part the district court’s dismissal for lack of subject matter jurisdiction of plaintiffs’ action against the U.S. Department of Agriculture, alleging claims under the Freedom of Information Act (“FOIA”) and the Administrative Procedure Act (“APA”).FOIA requires federal agencies to make certain agency records “available for public inspection in an electronic format.” 5 U.S.C. § 552(a)(2). FOIA’s judicial-review provision authorizes district courts to enjoin violations of this “reading room” provision.