FOIA Advisor

Court Opinions (2019)

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/].

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.

Court opinions issued June 12, 2019

Court Opinions (2019)Allan BlutsteinComment

AquAlliance v. Nat'l Oceanic & Atmosphereric Admin. (D.D.C.) -- denying plaintiff’s request for $41,000 in fees and costs because agency acted reasonably in processing “massive amount” of documents once the lawsuit was filed.

Judicial Watch v. U.S. Dep’t of State (D.D.C.) -- granting in part and denying in part agency’s use of attorney-client and deliberative process privileges to withhold records concerning agency’s use of personal email by or under Secretary Clinton.

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

Court opinions issued June 7, 2019

Court Opinions (2019)Allan BlutsteinComment

Cable News Network v. FBI (D.D.C.) -- ruling that: (1) agency properly relied on Exemption 3, in conjunction with the National Security Act of 1947, to redact information from James Comey’s memos concerning his meeting with President Trump; (2) agency properly relied on Exemption 1 with respect to 12 of 20 redactions from Comey’s memos.

Daily Caller News Found. v. FBI (D.D.C.) -- denying FBI’s request for an Open America stay because agency failed to show “exceptional circumstances” or that it made sufficient progress in reducing its backlog; denying plaintiff’s request for FBI to process 1200 pages per month instead of FBI’s usual rate of 500 pages per month.

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

Court opinion issued June 3, 2019

Court Opinions (2019)Allan BlutsteinComment

Humane Soc'y of U.S. v. Animal & Plant Health Inspection Serv. (D.D.C.) -- finding that: (1) agency improperly relied on Exemptions 6 and 7(C) to withhold narrative portion of inspection reports, among other items, noting that privacy exemptions do not protect “details about a business’s compliance with regulations and statutes;” further noting that government failed to demonstrate that disclosure would likely invite harassment and stigma; and (2) agency properly relied on Exemptions 6 and 7(C) to withhold licensee addresses and contact information from the inspection documents, as well third-parties’ names, images, and personally identifying information.

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

Court opinion issued May 30, 2019

Court Opinions (2019)Allan BlutsteinComment

Am. Civil Liberties Union v. NSA (2nd Cir.) -- affirming district court’s decision that six intelligence program documents were exempt from disclosure under Exemptions 1 and 3, and that a DOJ/Office of Legal Counsel memorandum was protected pursuant to Exemption 5. Notably, the Circuit rejected appellant’s arguments that the government’s Exemption 5 withholdings were undermined by the doctrines of “working law,” “express adoption,” or “incorporation by reference.”

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

Court opinion issued May 23, 2019

Court Opinions (2019)Allan BlutsteinComment

Satterlee v. Comm’r of IRS (W.D. Mo., 2019) -- concluding that: (1) plaintiff failed to exhaust his administrative remedies with respect to three of his four requests, which sought various records concerning tax liens; (2) plaintiff’s fourth request was improper because it sought the creation of a records or the answer to a question; (3) plaintiff was not entitled to expedited processing or to the litigation costs he incurred.

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

Court opinions issued May 22, 2019

Court Opinions (2019)Allan BlutsteinComment

Pub. Citizen. v. U.S. Dep't of Educ. (D.D.C.) -- concluding that agency properly relied on deliberative process and attorney-client privileges to withhold records pertaining to agency event, notably including the name of agency attorney from whom advice was sought.

Amadis v. DOJ (D.D.C. ) -- ruling that: (1) plaintiff failed to exhaust administrative remedies with respect to responses issued by DEA and FBI, notwithstanding those agencies’ offers to perform additional searches; (2) DEA performed adequate search for records pertaining to agency’s processing of plaintiff’s earlier FOIA request; (3) FBI properly relied on Exemption 7(E) to withhold search slips and case notes pertaining to its processing of plaintiff’s earlier FOIA request; (4) DOJ’s Office of Information Policy reasonably interpreted scope of plaintiff’s request and properly relied on Exemptions 5 and 6 to withhold information from its appeal “blitz” forms; (5) Department of State performed adequate search for records pertaining to its processing of plaintiff’s earlier FOIA request.

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