FOIA Advisor

Court opinion issued Sept. 20, 2018

Court Opinions (2018)Allan BlutsteinComment

Bernegger v. Exec. Office for U.S. Attorneys (D.D.C.) -- determining that: (1) EOUSA performed reasonable search for communications of prosecutors involved in plaintiff’s criminal case; (2) EOUSA properly relied on Exemptions 6 and 7(C) to withhold records about third parties, but that additional briefing was necessary with respect to one email exchanged between agency and federal trial court; and (3) EOUSA justified its withholdings under deliberative process privilege, except for one email exchanged between agency and trial court that required in camera review.

Summaries of all published opinions issued since April 2015 are available here.

Court opinions issued Sept. 19, 2018

Court Opinions (2018)Allan BlutsteinComment

Clervrain v. United States (D. Kan.) -- finding that: (1) Federal Bureau of Prisons properly aggregated plaintiff’s three requests because they sought similar records and were submitted by plaintiff on same day; (2) plaintiff failed to appeal agency’s denial of his fee waiver request and therefore court could not consider it.

Linder v. EOUSA (D.D.C.) -- dismissing case as moot because agency provided plaintiff with all records to which he was entitled for free, as plaintiff expressly requested.

Climate Investigations Ctr. v. Dep’t of Energy (D.D.C.) — concluding that: (1) agency performed reasonable search for records concerning clean-coal technology at Mississippi power plant; (2) agency properly withheld records pursuant to Exemption 4 based on impairment and competitive harm theories; (3) agency properly withheld certain records pursuant to attorney-client privilege, but could not rely on privilege to withhold agency communications that included private company’s counsel; and (4) agency properly relied on deliberative process privilege to withhold disputed records originating from agency headquarters, but did not provide sufficient evidence to permit court to evaluate propriety of withholdings made by agency’s National Energy Technology Laboratory; (5) names of third parties had not been previously disclosed publicly, as court initially found, but agency did not properly perform balancing test of private and public interests required by Exemption 6.

Summaries of all published opinions issued since April 2015 are available here.

FOIA News: Chief FOIA Officers Council to meet Oct. 4

FOIA News (2018)Allan BlutsteinComment

Register to Attend the October 4 Chief FOIA Officers Council Meeting

OGIS Blog, Sept. 19, 2018

The Chief FOIA Officers Council will meet on October 4, 2018, at 10 a.m. in the William G. McGowan Theater, and this meeting is open to the public. If you want to attend in person, please register using Eventbrite. If you cannot attend in person, feel free to join us via livestream.

Read more here.

Court opinions issued Sept. 18, 2018

Court Opinions (2018)Allan BlutsteinComment

Ctr. for Pub. Integrity v. FEC (D.D.C.) -- finding that agency properly relied on deliberative process privilege to withhold records pertaining to “@altFEC” Twitter account, as well as communications from Executive Office of President to certain senior FEC employees.

Crisman v. DOJ (D.D.C.) -- ruling that: (1) FBI performed adequate search for records pertaining to plaintiff, but failed to justify use of deliberative process privilege to withhold records; (2) FRB was not required to conduct additional search based on new information provided by plaintiff almost three years after FRB completed its initial search'; and (3) plaintiff’s request to DHS would require burdensome search, but denying summary judgment to government because DHS failed to propose ways to narrow request.

Summaries of all published opinions issued since April 2015 are available here.

Q&A: Crimes and misdemeanors

Q&A (2018)Allan BlutsteinComment

Q. I am aware of the attorney-client privilege and the crime-fraud exception with regard to attorneys for private parties, but does it apply in the case of attorneys with the government? Put simply, can government employees use government attorneys to further known fraud and illegal activities, and are those communications covered under the attorney-client privilege or can the privilege be pierced?

A. I am not aware of a FOIA case in which the court has actually overruled an agency’s withholding based on the crime-fraud exception, but district courts appear to be willing to consider its applicability. In 2014, for example, the Southern District of New York ultimately rejected that the exception applied to disputed documents, but stated that it was “skeptical of the government's contention that the crime-fraud exception has no applicability in the FOIA context."  Nat'l Immigration Project of Nat'l Lawyers Guild v. DHS, No. 11-3235, 2014 WL 6850977 (S.D.N.Y. Dec. 3, 2014). The court reasoned that "it is utterly implausible to suppose that Congress intended FOIA Exemption 5 to shield government documents when they were created for the purpose of furthering a crime or a fraud." 

Additionally, in 2015. the Eastern District of Pennsylvania evaluated whether records withheld in FOIA case under the attorney-client privilege fell within the crime-fraud exception (which the court stated was a “well-known” exception), but it concluded upon review of the disputed records that there was no evidence of crime or fraud. Pellegrino v. TSA No. 09-5505 (E.D. Pa. May 6, 2015). More recently, however, the Southern District of New York noted that it was “unclear whether a court construing FOIA could properly order disclosure based on the applicability of [the crime-fraud] exception.” Sorin v. U.S. DOJ, 280 F. Supp. 3d 550 (S.D.N.Y 2017).

FOIA News: Immigrant advocates file FOIA lawsuit against USCIS

FOIA News (2018)Ryan MulveyComment

USCIS Hit With FOIA Suit Over Citizenship Application Delays

Suzanne Monyak, Law360, Sept. 17, 2018

Several immigrant advocacy groups have accused U.S. Citizenship and Immigration Services of illegally withholding documents related to the agency’s handling of citizenship applications, claiming the government has not responded to the groups’ Freedom of Information Act request, according to a suit filed in California federal court Monday.

Los Angeles-based nonprofit Coalition for Humane Immigrant Rights and other advocacy organizations allege that USCIS violated the Administrative Procedure Act and the U.S. Constitution's due process clause by failing to respond within the statutory time frame[.]

Read more here (subscription required).

FOIA News: Senate Dems sue for Kavanaugh docs

FOIA News (2018)Allan BlutsteinComment

Six Senate Democrats file FOIA lawsuit to force release of Kavanaugh documents

  • Six Democrats on the Senate Judiciary Committee including Kamala Harris of California and Cory Booker of New Jersey filed a lawsuit on Monday seeking to force the National Archives and Records Administration and the Central Intelligence Agency to turn over documents related to Supreme Court nominee Brett Kavanaugh.

  • The suit, filed in the United States District Court for the District of Columbia, is in relation to three Freedom of Information Act requests submitted by members of the committee in early August.

  • The senators are demanding that the CIA and the National Archives produce documents related to Kavanaugh's time in the George W. Bush White House within twenty days of a court order.

By Tucker Higgins, CNBC, Sept. 17. 2018

Read more here.

FOIA News: FOIA Suit Seeks Docs On Alleged IRS Disclosure Of Tax Info

FOIA News (2018)Kevin SchmidtComment

FOIA Suit Seeks Docs On Alleged IRS Disclosure Of Tax Info

By Yvonne Juris, Law360, Sept. 14, 2018

A conservative watchdog has slapped the government with a Freedom of Information Act suit in D.C. federal court, saying the U.S. Department of Justice has refused to turn over documents on allegations that the Internal Revenue Service shared 1.1 million pages of confidential information on tax-exempt groups with the FBI.

Since filing its first of three FOIA requests in October 2016, the Cause of Action Institute has not received any documents from the Justice Department's Office of Information Policy or the Office of the Inspector General regarding 21 compact discs of tax data the IRS allegedly shared with the DOJ, the group said in its Thursday complaint.

Read more here (Subscription required).