Court opinions issued Sept. 30, 2021

N.Y Times v. HHS (2nd Cir.) -- affirming district court’s decision that Indian Health Service improperly withheld a third-party’s report evaluating agency’s management and administration as a “medical quality assurance record” under 25 U.S.C. § 1675.

Kowal v. DOJ (D.D.C.) -- on renewed summary judgment, finding that FBI’s Vaughn indices were adequate and that FBI properly withheld records concerning plaintiff’s capital defendant client pursuant to Exemptions 3 in conjunction with 18 U.S.C. § 3510), 6, 7(C), 7(D), and 7(E).

Citizens For Responsibility & Ethics In Wash. v. DOJ (D.D.C.) -- concluding that Federal Bureau of Prisons properly withheld records concerning its procurement of drugs used in federal executions, but that it could not withhold records pursuant to Exemption 7(E) because the exemption does not cover punishment phase of law enforcement.

Perioperative Servs. & Logistics v. U.S. Dep't of Veterans Affairs (D.D.C.) -- holding that agency properly relied on Exemption 6 to withhold records identifying a third party who filed a complaint against plaintiff.

Wash. Post v. SIGAR (D.D.C.) -- on renewed summary judgment, determining that: (1) agency properly relied on Exemption 1 to withhold records of interviews concerning agency’s “Lessons Learned Program”; (2) agency properly used Exemption 7(D) to withhold records identifying individuals who spoke “off the record,” but it could not use the exemption for “on the record” interviews; (3) agency properly relied on Exemptions 6 and 7(C) to withhold identifying information of various interviewees and third parties named in interviews; (4) agency properly withheld information on intelligence methods pursuant to Exemption in conjunction with the National Security Act; and (5) agency failed to justify ifs withholdings under Exemption 5’s deliberative process privilege, and it justified some but not all of its withholdings under the presidential communications privilege.

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

Court opinion issued Sept. 29, 2021

Byrnes v. DOJ (D.D.C.) -- determining that: (1) Drug Enforcement Administration did not perform adequate search for records pertaining to plaintiff, a private attorney who represented DEA employees in litigation against DEA; and (2) agency did not demonstrate that names of DEA attorneys were protected from disclosure under Exemption 6.

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

Court opinion issued Sept. 28, 2021

Amiri v. Nat'l Sci. Found. (D.D.C.) -- finding that; (1) NSF conducted adequate search for records concerning plaintiff and a grant he worked on; and (2) NSF properly withheld records pursuant to Exemption 5’s deliberative process privilege and Exemption 6, noting that agency’s inadvertent disclosure of certain unredacted pages did not waive agency’s right to use Exemption 6 to protect other material.

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

Court opinions issued Sept. 27, 2021

Am. Civil Liberties Union v. DOJ (S.D.N.Y.) -- concluding that DOJ properly invoked Exemptions 7(C) and 7(E) to withhold records concerning various grant programs, and that it properly withheld some, but not all, records pursuant to Exemption 6.

Lawrence v. SBA (E.D. Mich.) -- finding that: (1) agency’s argument that plaintiff failed to exhaust his administrative remedies was incorrect but not “objectively unreasonable” so as to warrant sanctions; and (2) plaintiff was eligible for attorney’s fees because his lawsuit was a contributing cause to disclosure of Paycheck Protection Program loan records, and he was entitled to a reasonable award based on the balance of relevant factors.

Hawkinson v. EOIR (D. Mass.) -- finding that agency conducted adequate search for certain Board of Immigration Appeals decisions notwithstanding omission of single document that plaintiff already possessed.

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

Court opinions issued Sept. 21-24, 2021

Sept. 24, 2021

Campo v. NARA (D.D.C.) -- finding that plaintiff’s complaint properly alleged that NARA improperly withheld agency records and that NARA’s factual assertions as to whether the agency retained legal custody of requested records could not support a motion to dismiss.

Cox v. Bureau of Prisons (D.D.C.) -- determining that agency properly relied on Exemption 6 to withhold handwritten signatures from agency employees’ oaths of office.

Sept. 23, 2021

Ctr. for Investigative Reporting v. DOJ (9th Cir.) -- in 2-1 decision, denying petition for rehearing en banc and amending its December 3, 2021 opinion (but not its ultimate decision) to reverse district’s ruling as to whether Exemption 3 protected certain trace database data.

Sept. 22, 2021

Energy Policy Advocates v. U.S. Dep't of Interior (D.D.C.) -- holding that plaintiff failed to show that its request for records concerning senior advisor Elizabeth Klein satisfied statutory standard for expedited processing.

Am. Civil Liberties Union Found. v. DOJ (N.D. Cal.) -- ruling that three DHS components properly relied on Exemptions 5 and 7(E) to protect some, but not all, disputed records pertaining to social media surveillance.

Sept. 21, 2021

Sheppard v. DOJ (W.D. Mo.) -- concluding that Exemptions 5, 7(C), 7(D) protected some, but not all, records pertaining to DOJ’s investigation into a 1988 arson prosecution in Kansas City, Missouri.

Lewis v. Dep’t of the Treasury (D. Md.) -- finding that: (1) good cause existed to deny dismissal of pro se plaintiff’s FOIA claims on grounds of improper service; (2) plaintiff failed to administratively appeal 37 of 40 decisions by various Treasury components and the Department of Veterans Affairs (VA); and (3) with respect to the 3 requests that plaintiff did appeal, two Treasury components provided no additional arguments for dismissal and the VA failed to adequately justify its withholdings under Exemptions 5 and 6.

Bragg v. FBI (D.D.C.) -- deciding that: (1) FBI properly relied on Exemptions 6 and 7(C) to withhold names of third parties from records concerning plaintiff, and (2) plaintiff conceded agency’s argument that she failed to administratively appeal denial of separate request for records concerning third party.

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

Court opinions issued Sept. 20, 2021

Cincinnati Enquirer v. DOJ (S.D. Ohio) -- finding that DOJ properly relied on Exemption 7(C) to withhold in full records pertaining to criminal investigation of drug trafficking by third party.

Tobias v. U.S. Dep’t of the Interior (D.D.C.) -- determining that agency properly relied on Exemption 5’s deliberative process, attorney-client, commercial information, and attorney work-product privileges (the application of which plaintiff did not dispute), and that agency adequately demonstrated that foreseeable would result from disclosure of records related to activities of then-Secretary Zinke and other senior employees.

Waterman v. IRS (D.D.C.) -- On remand from D.C. Circuit to examine issue of segregability of documents concerning plaintiff, reaffirming that IRS properly relied on Exemptions 5 and 6 and expressly finding that all reasonably, segregable non-exempt records had been released.

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

Court opinions issued Sept. 17, 2021

Knight First Amendment Inst. at Columbia Univ. v CDC (S.D.N.Y.) -- ruling that: (1) agency did not perform adequate search for records concerning communications policies about coronavirus, because it improperly interpreted scope of request, failed to use relevant search terms, and did not provide sufficient detail about its search methodology; and (2) CDC improperly relied on Exemptions 5’s presidential communications and deliberative process privileges to withhold certain documents (which were ordered to be released), and it failed to provide adequate information to permit ruling on another document (necessitating in camera review).

Webster v. DOJ (D.D.C.) -- determining that plaintiff was eligible and entitled to award of attorneys’ fees in nearly 20-year-old case; reducing requested award from $692,925 to $225,714, because plaintiffs’ attorney did not qualify for requested $1,000 hourly rate and plaintiff’s time entries contained clear recordkeeping errors and improperly included time spent on failed motions, as well as excessive time on litigating fees.

Leopold v. USCIS (D.D.C) -- (1) dismissing claims against DHS, U.S. Customs and Border Patrol and USCIS because plaintiff declined to oppose government’s motion; and (2) granting government’s motion for summary judgment with respect to U.S. Immigration and Customs Enforcement because plaintiff’s narrowed request for certain records of “any and all immigration and enforcement actions was too vague.

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

Court opinions issued Sept. 16, 2021

Flyers Rights Educ. Fund v. FAA (D.D.C.) -- ruling that FAA properly relied on Exemption 4 in withholding records concerning the Boeing Company’s design changes to its 737 MAX jet airplane. In reaching its decision, the court rejected plaintiff’s arguments that FAA’s public commitment to “transparency” undermined agency’s assurances of confidentiality to Boeing or that alleged “importance” or “necessity” of withheld materials to public had any relevance under Exemption 4.

Office of Fulton Cnty. Dist. Att’y v. DOJ (N.D. Ga.) -- deciding that plaintiff was eligible for and entitled to attorneys' fees and litigation costs in case involving internal investigative records of U.S.Marshals Service employees, noting that the agency’s initial reliance on Exemption 7(A) to withhold records had been unreasonable.

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

Court opinions issued Sept. 13, 2021

Prot. Democracy Proj. v. HHS (D.D.C.) -- on renewed summary judgment, finding that HHS properly relied on Exemption 5’s deliberative process privilege to withhold record related to agency’s discontinuation of advertising for healthcare.gov in 2017-2017, but ordering in camera review of remaining disputed records in order to determine whether certain factual material is deliberative or not readily segregable and to determine whether other information is pre-decisional or post-decisional.

Taylor v. IRS (D.D.C.) -- concluding that IRS performed reasonable searches for records pertaining to plaintiff’s requests and that agency released all responsive records in full.

Ameen v. U.S. Dep’t of State (D.D.C.) -- ruling that plaintiff was not precluded from filing suit pro se, because the underlying FOIA requests “(1) indicated that counsel was requesting the documents in connection with and for use in the representation of plaintiff, and (2) contained release forms signed by plaintiff ‘authoriz[ing] and request[ing]’ the release of records to counsel.”

Shaklee & Oliver, P.C. v. USCIS (W.D. Wash.) -- denying award of attorney’s fees in case involving plaintiff’s requests for his Alien files, because no judicial order, written agreement, or consent decree existed and USCIS provided “compelling reasons” for its delay in processing records; further deciding that plaintiff’s motion for attorney’s fees improperly included references to settlement discussions with USCIS.

Open Soc’y Justice Initiative v. CIA (S.D.N.Y) -- determining that CIA properly relied on Exemption 1 to withhold its 2018 report concerning death of Jamal Khashoggi, and denying plaintiff’s reconsideration motion that permitted government to submit a “no numbers, no list” response pursuant to Exemptions 1 and 3.

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

Court opinion issued Sept. 8, 2021

Savage v. Dep’t of the Navy (D.D.C.) -- ruling that: (1) agency properly relied on Exemption 7(C) to withhold names of third parties from investigative report concerning plaintiff’s racial discrimination complaints; and (2) agency did not meet its burden to show that its withholdings under the deliberative process privilege met statute’s foreseeable harm requirement.

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