Court opinions issued Mar. 21, 2023

Energy Policy Advocates v. Dep’t of the Interior (D.D.C.) -- deciding that: (1) agency performed adequate search for calendar and meeting records of agency senior advisor, noting that agency was not required to search for in-meeting chats on Zoom, which the agency did not control; (2) agency properly relied on Exemption 6 to withhold personal email addresses, email addresses of White House, EOP, DOD, and DHS employees, and a cell phone number; and (3) agency’s generic, boilerplate explanations for its deliberative process privilege claims did not “even come close” to meeting its burden, nor did agency’s justifications for relying on the presidential communications privilege.

Akel v. DOJ (D.D.C.) -- ruling that Executive Office for U.S. Attorneys performed adequate supplemental search for certain archived emails pertaining to plaintiff’s criminal case, but that it neglected to adequately explain its search methods in response to broader, second request.

Gatore v. DHS (D.C. Cir.) (unpublished) -- affirming district court’s decision to deny class certification under Rule 23(b)(3), principally because agency had rescinded its policy of withholding “Assessment to Refer” documents in full, rendering case moot.

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

Court opinions issued Mar. 17, 2023

Mar. 17, 2023

Boundy v. U.S. Patent & Trademark Office (E.D. Va.) -- ruling that: (1) agency performed reasonable search for guidance documents concerning acceptable signatories, even though it did not use plaintiff’s long list of preferred search terms or uncover “secret rules” plaintiff believed existed; and (2) following in camera review, agency properly relied on Exemption 5’s deliberative process and attorney-client privileges to withhold all but two images that it previously disclosed to plaintiff.

Richardson Bay Envtl. Prot. Ass'n v. FAA (D.D.C.) -- concluding that: (1) FAA did not sufficiently explain why, in “this day and age,” it searched for certain potentially responsive records only in a physical filing cabinet and not electronically; and (2) agency properly invoked Exemption 7(A) to withhold certain records concerning plaintiff’s complaints about third party.

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

Court opinions issued Mar. 13, 2023

Vidal-Martinez v. ICE (N.D. Ill.) -- denying plaintiff’s interim petition for award of attorneys fees and costs because agency, not plaintiff, was prevailing party in underlying litigation; rejecting plaintiff’s contention that court’s scheduling orders and minute entries altered parties’ legal relationship or granted plaintiff relief on merits; further rejecting plaintiff’s argument that agency changed its legal position under “catalyst theory” of eligibility.

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

Court opinions issued Mar. 9, 2023

Stevens v. Broad. Bd. of Governors (N.D. Ill.) -- on renewed summary judgment, concluding that: (1) U.S. Agency for Global Media performed adequate search for contract records and properly withheld certain records pursuant to Exemption 4; (2) HHS adequately explained it search process and properly withheld employee names and titles under Exemption 6; (3) USCIS performed reasonable search and properly relied on Exemption 4 to withhold contractor’s pricing information; and (4) USAID cured its search deficiency with supplemental search; and (5) ICE adequately justified its withholdings under Exemption 5’s deliberative process, attorney work-product, and attorney-client privileges.

Williams v. DOJ (D.D.C.) -- determining that DEA properly withheld various records concerning plaintiff’s criminal case pursuant to Exemptions 7(E) and 7(F), that plaintiff was not entitled to special access to records under FOIA to attack his criminal conviction, and that plaintiff was not entitled to appointment of counsel.

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

Court opinion issued Mar. 8, 2023

Welsh v. U.S. Dep't. of State (D.D.C. ) -- determining that agency performed reasonable search for a list of all posts filled by a specific type of U.S. personnel that had international travel restrictions imposed on them, and that the agency was not required to create such a list for plaintiff.

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

Court opinions issued Mar. 6-7, 2023

Mar. 7, 2023

S. Envtl. Law Ctr. v. Tenn. Valley Auth. (E.D. Tenn.) -- ruling that agency properly relied on Exemption 4 to redact certain information contained in two contracts negotiated with natural gas pipeline companies; further ruling that foreseeable harm provision was applicable, consistent with Second Circuit’s 2022 decision in Seife v. FDA, and that agency adequately established that disclosure would harm companies’ commercial or financial interests; declining to decide whether disclosure was prohibited by Trade Secrets Act and thus outside reach of foreseeable harm provision.

Mar. 6, 2023

Aguirre v. U.S. Nuclear Regulatory Comm'n (S.D. Cal.) -- finding that: (1) agency failed to perform reasonable search for certain communications between NRC and generating station operators pertaining to incident involving storage of nuclear waste; (2) agency properly withheld identities third parties pursuant to Exemption 7(C); (3) agency properly withheld link to agency computer network pursuant to Exemption 7(F); (4) agency properly relied on Exemption 4 to withhold two “proprietary” documents submitted by private companies under implied promise of confidentiality; not addressing whether foreseeable harm provision applied to Exemption 4; and (5) rejecting plaintiff’s argument that separate Vaughn index was necessary due to alleged deficiencies in agency’s declaration.

Huddleston v. FBI (E.D. Tex.) -- denying plaintiff’s request for interim attorney’s fees and costs in case concerning FBI’s investigation of Seth Rich’s death, but permitting plaintiff to refile same motion after court ruled on pending motions for reconsideration.

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

Court opinions issued Feb. 28, 2023

N.Y. Times. v. U.S. Dep't of Educ. (S.D.N.Y.) -- finding that: (1) agency justified its reliance on Exemption 5’s deliberative process privilege to withhold all but three disputed documents pertaining to a school safety commission, and (2) agency properly invoked Exemption 7(A) to withhold FBI and DHS reports related to ongoing investigations into school safety incidents

Longas-Palacio v. USCIS (S.D. Tex.) -- concluding that USCIS properly withheld certain records pertaining to plaintiff’s removal proceedings pursuant to Exemption 3, in conjunction with 49 U.S.C.§ 114(r) (“No-Fly” list), as well as Exemption 5’s deliberative process privilege and Exemptions 6, 7(C), and 7(E).

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

Court opinion issued Feb. 23, 2023

Jabar v. DOJ (2nd Cir.) -- affirming district court’s decision and rejecting arguments that plaintiff-appellant was entitled to greater access to FBI records concerning his criminal case as a constitutional right under Brady v. Maryland, and that district court erred in declining to review documents withheld in full.

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

Court opinion issued Feb. 22, 2023

Assassination Archives & Research Ctr. v. CIA (D.D.C.) -- determining that: (1) CIA performed adequate search for certain records concerning the Kennedy assassination and it was not required to search its operational files merely because plaintiff speculated that certain individuals should have been targets of government investigations; further rejecting plaintiff’s argument that CIA’s failure to find more material, as well as plaintiff’s perceived importance of those records, undermined the adequacy of agency’s search efforts; and (2) although CIA’s use of Exemption 1 to withhold records over 50 years old was questionable, CIA properly relied on Exemption 3 in conjunction with the National Security Act and the Central Intelligence Agency Act; (3)(a) CIA met its burden to segregate and release non-exempt material; (b) CIA was not required to initiate a new search of the classified records retrieved from former President Trump, who plaintiff asserted “had expressed strong interest” in the subject; (c) plaintiff was not entitled to discovery merely because CIA initially denied having received plaintiff’s request; (d) if plaintiff seeks original (and perhaps more legible) FBI records, as opposed to the “blemished” records the CIA located in its files and referred to FBI, it must submit a request to the FBI.

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

Court opinions issued Feb. 21, 2023

Waterman v. IRS (D.C. Cir.) -- affirming in part and reversing in part district court’s decision and holding that: (1) IRS properly relied on Exemption 5’s deliberative process privilege to withhold “evaluative” facts in an auditor’s memo concerning plaintiff’s suspected misconduct, but that the memo’s chronological collection of plaintiff’s statements was not exempt; (2) IRS improperly invoked Exemption 5 to withhold an auditor’s memo summarizing her telephone calls with plaintiff that, in the majority’s view, reflected no point of view; and (3) IRS properly invoked Exemption 5 to withhold an analysis of plaintiff’s disciplinary referral, including extracted facts pertinent to plaintiff’s alleged misconduct. In a partial dissent, one panelist opined that both memos were deliberative because “(1) their purpose was to assist in a discretionary decision” (whether to further investigate [plaintiff]) and (2) their authors selected facts that reflected a point of view (that plaintiff should be investigated).”

Project on Gov't Oversight v. DHS (D.D.C.) -- ruling that: (1) plaintiff, a sophisticated FOIA party, had expressly waived its right—via email exchanges with opposing counsel and in joint status reports—to contest the sufficiency of agency’s search for certain complaint-related records maintained by the Office of Civil Rights and Civil Liberties; and (2) DHS improperly relied on Exemption 5’s deliberative process privilege to withhold “unverified observations of first impression” contained in expert reports, and it failed to provide sufficient evidence to establish that experts’ analysis, opinions, or recommendations met the foreseeable harm requirement.

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