FOIA Advisor

FOIA News: OIP Statement on SCOTUS Decision

FOIA News (2019)Kevin SchmidtComment

SUPREME COURT ISSUES DECISION ON EXEMPTION 4 OF THE FOIA

Today the Supreme Court issued its opinion in Food Mktg. Inst. v. Argus Leader Media, 139 S. Ct. 915 (2019), which examines the definition of the term confidential for applying Exemption 4 of the FOIA.  The Court’s decision overturns the definition of confidential established over forty years ago in Nat’l Parks & Conservation Ass'n v. Morton, 498 F.2d 765 (D.C. Cir. 1974).  The Court’s opinion can be found here.  

As with all significant FOIA developments, OIP will issue guidance and provide training on the impact of this decision.  Please be sure to continue following us on FOIA Post for announcements on when guidance is issued and training opportunities are offered.  In the meantime, agencies are always welcome to seek advice through OIP’s FOIA Counselor Service.

Read more here.

FOIA News: Reaction to SCOTUS Ruling on Exemption 4

FOIA News (2019)Kevin SchmidtComment

FOIA News: SCOTUS strikes down D.C. Circuit's Exemption 4 test

FOIA News (2019)Allan BlutsteinComment

Supreme Court limits access to government records in loss for Argus Leader, part of the USA TODAY Network

Jonathan Ellis & Richard Wolf, USA TODAY, June 24, 2019

The Supreme Court limited public and media access to government records Monday by expanding a federal law's definition of what can be deemed confidential.

At issue was whether confidentiality, as used in a section of the Freedom of Information Act, means anything intended to be kept secret or only information likely to cause harm if publicized. The high court adopted the broader definition.

Associate Justice Neil Gorsuch wrote the 6-3 decision, with Justices Stephen Breyer, Ruth Bader Ginsburg and Sonia Sotomayor dissenting.

Read more here.

Copy of decision here.

[ALB comment: Bad result, correct decision. Congress should amend the statute]

Court opinions issued June 21, 2019

Court Opinions (2019)Allan BlutsteinComment

Whittaker v. DOJ (D.D.C.) -- ruling that FBI failed to explain with reasonable specificity how Exemption 7(E) categorically protects the results of its “National Agency Check.”

Poulsen v. DOD (N.D. Cal.) -- determining that plaintiff was ineligible for attorney’s fees notwithstanding government’s partial withdrawal of Glomar responses following two intervening public acknowledgments relevant to plaintiff’s request.

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

Court opinions issued June 18, 2019

Court Opinions (2019)Allan BlutsteinComment

McGehee v. DOJ (D.D.C.) -- denying plaintiff’s motion to reconsider summary judgment ruling in case concerning FBI’s investigation of Jonestown massacre, because plaintiff failed to show change of controlling law, availability of new evidence, or clear error or manifest injustice, as required by FRCP 59(e).

Wolk Law Firm v. NTSB (E.D. Pa.) -- holding that agency properly relied on Exemptions 2, 3, 4, 5, and 6 to withhold records concerning multiple accident investigations, including cell phone video of airplane’s cockpit. The court further held that FOIA did not compel production of actual airplane wreckage, as it falls outside meaning of “agency record.”

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

FOIA News: Interior's FOIA process under scrutiny

Court Opinions (2019)Allan BlutsteinComment

Interior's internal FOIA policy gives political appointees sign-off on document releases, raising concerns

By Ellie Kaufman, CNN, June 18, 2019

The Interior Department has developed a second, undisclosed internal Freedom of Information Act review policy, which requires certain political appointees to sign off on documents before releasing them publicly, according to internal emails and documents reviewed by CNN.

This extra layer of review, established in a draft memo in May 2018 that CNN has viewed, requires the deputy chief of staff, director of communications and the deputy solicitor to be copied on documents that mention politically appointed staff members before they are released in response to a FOIA request, a process critics say is injecting politics into what is supposed to be a nonpolitical process.

Read more here.

[ALB comment: Newsworthy, but not groundbreaking. Treasury, for example, established a sensitive review process during the Obama Administration. See https://www.nationalreview.com/2015/06/obama-administrations-newly-political-approach-foias-eliana-johnson/. Many other agencies have employed similar processes. See https://causeofaction.org/tag/sensitive-review/].

FOIA News: Interior IG asked to investigate FOIA program

FOIA News (2019)Allan BlutsteinComment

Green groups ask Interior watchdog to investigate agency's public records policies

By Miranda Green, The Hill, June 17, 2019

A number of conservation groups are asking the Interior Department’s internal watchdog to investigate reports that political appointees are improperly interfering in the release of public records.

Two separate complaints filed Monday by Earthjustice and the Campaign for Accountability say officials are using an "awareness review" policy to unlawfully delay the release of Freedom of Information Act (FOIA) requests, and demand Interior’s Office of Inspector General (OIG) look into the situation.

Earthjustice’s letter, dated June 14, claims the department's FOIA process "has been subject to political interference by political appointees and non-career staff" since 2017.

Read more here.

Court opinions issued June 14, 2019

Court Opinions (2019)Allan BlutsteinComment

DiBacco v. U.S. Dep’t of the Army (D.C. Cir.) — affirming district court’s decision that: (1) U.S. Army performed adequate search for records concerning Nazi general Reinhard Gehlen; and (2) agency properly withheld records pursuant to Exemption 3 in conjunction with National Security Act of 1947 and CIA Act of 1949.

Sluss v. DOJ (D.D.C.) -- ruling that: (1) DOJ failed to provide sufficient information for court to determine whether deliberative process privilege applied to memoranda concerning plaintiff’s request to be transferred to Canadian prison; (2) with respect to Exemption 7(F) withholdings, DOJ failed to show that disclosure would reasonably endanger plaintiff’s life, as agency alleged, but ordering documents to be released to and maintained by plaintiff’s counsel only; (3) DOJ properly relied on Exemption 7(C) to withhold information pertaining to third parties; and (4) DOJ failed to demonstrate that it performed adequate search for records concerning penal treaty between Canada and the United States.

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