Court opinion issued Feb. 23, 2021

Cause of Action Inst. v. Export-Import Bank (D.D.C.) — following in camera review, (1) affirming an agency’s use of the deliberative-process privilege to withhold certain internal records, such as property risk-management reports and communications with the Executive Office of the President about political nominees; (2) rejecting the use of the deliberative-process privilege to withhold portions of senior staff reports and materials provided to GAO; (3) rejecting the use of the deliberative-process and attorney-client communication privileges to withhold an internal email concerning the requester’s blog activity; (4) affirming the use of Exemption 6 to withhold White House email addresses; (5) remanding the majority of records to the agency for renewed motion on summary judgment, including portions of an email chain withheld as “non-agency records,” other records provided to GAO, and cybersecurity recommendations; (6) postponing consideration of the agency’s Exemption 4 claims; and (7) warning agency that in camera review called into question “whether the Bank has adequately complied with FOIA’s segregability mandate,” and otherwise highlighting multiple times the agency’s failure to account for records in its Vaughn index and its inaccurate description of records in its submissions.

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

Court opinion issued Feb. 22, 2021

Gellman v. DHS (D,D.C.) -- in case involving plaintiff’s request for records about himself, finding on renewed summary judgment that: (1) Office of the Director of National Intelligence properly relied on Exemption 5’s deliberative process privilege to redact records and noting that agency was not required to disprove that redacted language was not later adopted as agency policy; (2) Office of Information Policy properly withheld draft statements to the media pursuant to Exemption 5, as well as email from public affairs official about how to respond to news article; and (3) OIP properly withheld certain news clips as “unresponsive” to plaintiff’s request even though they were were contained in compilations that included responsive items.

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

Court opinion issued Feb. 18, 2021

Ctr. for Investigative Reporting v. FBI (N.D. Cal.) -- finding that the FBI properly relied on Exemption 7(A) to withhold certain records pertaining to death of two American citizens in Papua Province, Indonesia, noting that the government has secured an arrest warrant and intends to prosecute the murder suspect once he is released from foreign prison.

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

Court opinion issued Feb. 9, 2021

Leopold v. Cent. Intelligence Agency (D.C. Cir.) -- reversing district court’s order that the CIA confirm or deny the existence of records concerning “payments to Syrian rebels,” and rejecting the requester’s argument that a tweet from President Trump “officially acknowledged” the “government’s intelligence interest in the broader categories of records
. . . requested” because that tweet was “subject to several plausible interpretations,” may have “fabricated facts,” and did not actually “reveal the existence of Agency records about the alleged [payment] program.”

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

Court opinion issued Feb. 8, 2021

Trotter v. Ctr. for Medicare & Medicaid Serv. (D.D.C.) -- deciding that CMS properly relied on Exemption 6 to withhold domain portions of email addresses associated with registered healthcare providers, except for domain names that CMS already releases for participants in a digital records-sharing program.

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

Court opinions issued Feb. 5, 2021

Accurso v. DOJ (D.D.C.) -- concluding that FBI properly relied on Exemptions 7(C) and 7(E) to withhold records pertaining to plaintiff’s prosecution for distributing child pornography.

NY Legal Assistance Grp. v. Bd. Immigration Appeals (2nd Cir.) -- in a 2-1 decision, vacating and remanding district court’s decision that agency was not required to affirmative publish its non-precedential opinions pursuant to 5 U.S.C. § 552(a)(2).

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

Court opinions issued Feb. 4, 2021

Renewable Fuels Ass’n v. EPA (D.D.C.) -- holding that EPA properly relied on Exemption 4 to withhold the names and locations of oil refineries that applied for relief from the agency’s Renewable Fuel Standard program, except for a small number of refineries that did not appear to customarily treat all of its applications as private. Notably, the court stated that a government assurance of privacy was not required under binding D.C. Circuit law in order for information to qualify for Exemption 4. The court further stated that even if it was able to ignore binding precedent, it believed that the “better approach would be that privately held information is generally confidential absent an express statement by the agency that it would not keep information private, or a clear implication to that effect (for example, a history of releasing the information at issue).”

Bd. of Comm'rs of Clermont Cnty. v. EPA (S.D. Ohio) -- finding that EPA properly relied on Exemption 5’s deliberative process and attorney-client privileges to withhold records about a closed hazardous waste dump.

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

Court opinion issued Feb. 3, 2021

N.Y. Times v DOJ (S.D.N.Y.) -- ordering in camera review of independent monitor’s report pertaining to intervenor-Volkswagen AG’s compliance with a 2018 plea agreement, rejecting claims by government and intervenor that withholdings were justified pursuant to Exemptions 4 and 5.

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

Court opinions issued Feb. 2, 2021

Sea Shepherd Legal v. NOAA (W.D. Wa.) -- finding that: (1) agency properly relied on Exemption 5’s deliberative process and attorney-client privileges to withhold records about the Māui dolphin, except for internal discussions about the content and timing of a Federal Register notice; (2) agency properly withheld identifying information about New Zealand government officials pursuant to Exemption 6; and (3) agency met foreseeable harm requirement for both exemptions under the criteria enunciated by the D.C. Circuit in Machado Amadis v. U.S. Department of State.

Albaladejo v. ICE (D.D.C.) -- concluding that agency failed to show that it performed adequate search for records concerning air transportation of noncitizen detainees with certain medical conditions, especially in light of internal agency documents that suggested ICE overlooked specific locations of responsive records.

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

Court opinions issued Jan. 28, 2021

Diocesan Migrant & Refugee Serv. v. ICE (W.D. Tex.) -- awarding plaintiff more than $52,000 in attorney fees and costs after considering, among other things, that agency “failed to establish even a colorable basis . . . to support the adequacy of its search” and “gave no reasonable basis” for its Exemption 5 withholdings.

Stylianos v. USCIS (D. Mass.) -- ruling that agency properly invoked Exemption 6 to withhold plaintiff’s marriage certificate maintained in his estranged wife’s A-file, but chiding the parties for not considering alternative resolutions.

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