Court opinions issued June 1, 2021

Cause of Action Inst. v. DOJ (D.C. Cir.) -- reversing district court’s decision and concluding that: (1) DOJ improperly segmented one large electronic file into separate records and withheld portions as non-responsive; (2) plaintiff had standing to challenge agency’s practice and policy of segmenting records, but issue was unripe for adjudication.

Corley v. DOJ (D.C. Cir.) -- affirming district court’s decision that FBI properly withheld records concerning plaintiff’s trafficking and child pornography convictions pursuant to Exemption 3 in conjunction with the Child Victims’ and Child Witnesses’ Rights Act,” 18 U.S.C. § 3509.

Ecological Rights Found. v. EPA (D.D.C.) -- granting agency’s request for reconsideration of court’s decision that Exemption 7(C) did not protect names of agents tasked with providing protection to former EPA Administrator Andrew Wheeler as part of his Personnel Security Detail.

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

Court opinion issued May 28, 2021

Pitts v, DOJ (D.D.C.) -- ruling that Federal Bureau of Prisons was not required to create records indicating the cost of keeping plaintiff in its custody (data that BOP did not maintain), and that BOP fully discharged its FOIA obligation by releasing cost data related to the institution in which plaintiff is held.

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

Court opinions issued May 24, 2021

Scott v. IRS (S.D. Fla.) -- denying agency’s motion for reconsideration of court’s ruling that certain records were not properly withheld as “return information” pursuant to Exemption 3 and 26 U.S.C. § 6103(a); declining to consider agency’s new argument that disputed records were also protected under 26 U.S.C. § 6103(b)(2)(A).

Leopold v. DOJ (D.D.C.) -- denying government’s motion to consolidate three cases concerning records about the attack on the U.S Capitol on January 6, 2021, because the overlap in agencies and documents was limited and consolidation would not necessarily be more efficient.

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

Court opinion issued May 21, 2021

Porup v. CIA (D.C. Cir.) -- affirming district court’s decision that: (1) plaintiff’s “policy and practice” claim was moot because after plaintiff filed suit, CIA changed its policy of refusing to process requests seeking information related to conduct that CIA believes would be unlawful, and (2) CIA performed adequate search for certain operational files concerning use of poison for covert assassination, and it properly withheld records pursuant to Exemption 3 in conjunction with National Security Act of 1947.

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

Court opinion issued May 18, 2021

Blixseth v. FBI (D. Nev.) -- granting government’s motion to transfer venue to the District of Coulmbia despite plainitff’s residence in Nevada because plaintiff’s attorney is in D.C., plaintiff has at least one other FOIA action pending in D.C., and agency’s records and witnesses are in D.C.

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

Court opinions issued May 11, 13, & 14, 2021

May 14, 2021

Kilmer v. U.S Customs & Border Patrol (D.D.C.) -- concluding that: (1) except in one minor respect, CBP performed adequate search for records concerning its interactions with Canadians seeking entry to participate in 2017 Women’s March; and (2) CBP’s broad explanations for its use of Exemptions 5, 6, 7(C), and 7(E) did not permit the court to meaningfully review withholdings.

May 13, 2021

Rutigliano v. DOJ (2nd Cir.) -- summarily affirming district court’s decision that DOJ properly relied on Exemption 5 to withhold a “prosecution declination memorandum.”

May 11, 2021

Xanthopoulos v. IRS (D. Minn.) -- finding that IRS properly invoked Exemption 7(E) to redact agency’s Internal Revenue Manual and declining to decide whether the “foreseeable harm” provision imposes a heightened showing by the government.

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

Court opinion issued May 10, 2021

Pub. Justice Found. v. Farm Serv. Agency (N.D. Cal.) -- determining that: (1) agency properly relied on Exemption 3, in conjunction with 7 U.S.C. § 8791 (Food, Conservation, and Energy Act of 2008), to withhold various records concerning applicants to agency’s farm loan program, except for specific earmarks by FSA for approved loans; (2) Exemption 4 was inapplicable because FSA failed to provide express implied assurance of confidentiality; and (3) agency could not use Exemption 6 to withhold loan payment information, but it properly withheld sensitive personally-identifiable information such as social security numbers, bank account information, personal assets, etc.

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

Court opinions issued May 4 & May 7, 2021

May 7, 2021

Pavement Coatings Tech. Council v. U.S. Geological Survey (D.C. Cir.) -- reversing and remanding district court’s decision that agency properly relied on Exemption 5’s deliberative process privilege to withhold modeling data related to agency’s coal tar sealant studies; affirming district court’s decision that agency properly withheld information concerning study participants pursuant to Exemption 6.

May 4, 2021

Ballow v. DOJ (D.D.C.) -- deciding that EOUSA conducted an adequate search for records concerning plaintiff’s extradition from Mexico and that it properly withheld all records pursuant to Exemptions 5, 7(C), and 7(D).

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

Court opinions issued May 3, 2021

Cincinnati Enquirer v. DOJ (S.D. Ohio) -- determining that: (1) DEA performed adequate search for records organized under “Operation Speakeasy”; and (2) DEA could not rely on Exemption 7(C) to categorically withhold investigatory records pertaining to third party, because privacy interest interest was outweighed by public interest—namely shedding light on DOJ’s decision not to prosecute the highest elected law enforcement official in a Kentucky county for obstruction of justice.

Citizens for Responsibility & Ethics in Wash. v. DOJ (D.D.C.) -- ruling that: (1) agency’s denial of plaintiff’s request for expedite processing was moot issue; and (2) DOJ properly relied on Exemption 5’s deliberative process privilege to withhold draft legal analysis prepared by an OLC attorney concerning Special Counsel Mueller’s investigation; and (3) DOJ failed to show that OLC’s signed memorandum to Attorney General Barr was pre-decisional for purposes of Exemption 5’s deliberative process privilege or that it was protected under the attorney-client privilege, noting that DOJ affidavits were “so inconsistent with evidence in the record, they are not worthy of credence.”

Besson v. U.S. Dep’t of Commerce (D.D.C.) -- on renewed summary judgment and following supplemental release of material, concluding that government properly relied on Exemption 4 to withhold remaining disputed portion of agreement between NIH and a private telecommunications company.

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

Court opinions issued Apr. 25-30, 2021

Apr. 30, 2021

Farah v. DOJ (D. Minn.) -- following in camera review of disputed documents concerning plaintiff’s prosecution, ruling that: (1) EOUSA that properly relied on Exemption 5’s deliberative process and attorney work-product privileges, except with respect to portions of two pages that contained non-exempt material; and (2) EOUSA properly redacted correspondence pursuant to Exemption 7(C) in all respects.

Apr. 29, 2021

Prop. of People v. DOJ (D.D.C.) -- following in camera review of FBI documents pertaining to Donald Trump through 2015, deciding that: (1) FBI properly withheld records pursuant to Exemption 3 in conjunction with Federal Rule of Criminal Procedure 6(e); intercepted communications could not be withheld under Exemption 3 in conjunction with Title III of the Omnibus Control and Safe Street Act of 1968, but sealing orders issued by another court would prevent disclosure if still in effect; (2) DOJ properly withheld records pursuant to Exemptions 7(A), 7(C), and 7(D), but failed to show that disclosure of surveillance logs from more than 20 years ago would cause harms protected by Exemption 7(E).

Apr. 28, 2021

Nat’l Pub. Radio v. FBI (D.D.C.) -- on reconsideration under Rule 60(b), finding that FBI justified its use of Exemptions 7(E) and 7(F) to withhold videos depicting ballistics tests of certain types of ammunition.

Chavis v. DOJ (D.D.C.) -- determining that: (1) DEA performed reasonable search for records concerning plaintiff’s murder conviction and properly refused to search for records concerning plaintiff’s co-defendants on privacy grounds; and (2) DEA properly withheld records pursuant to Exemptions 6, 7(C), 7(D), 7(E), and 7(F).

Apr. 27, 2021

Stoufer v. FBI (D. Alaska) -- concluding that multiple DOJ components conducted reasonable searches concerning plaintiff and that the Office of Inspector General properly relied on Exemption 7(C) to redact names of employees and third parties who handled plaintiff’s complaints.

Gutierrez v. EOUSA (D.D.C.) -- ruling that EOUSA conducted reasonable search for records concerning plainitf’s conviction for producing child pornography.

Apr. 26, 2021

Sartori v. U.S. Army (11th Cir.) (unpublished) -- granting summary affirmance to Army because plaintiff abandoned his appeal and because the district court’s decision was proper on the merits.

Apr. 25, 2021

NY Times v. Def. Health Agency (D.D.C.) -- denying plaintiff’s request for a preliminary junction to compel production, on an expedited basis and by a date certain, extensive data regarding the government’s effort to distribute coronavirus vaccines.

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