FOIA Commentary: Top federal FOIA decisions of 2018

Federal courts issue hundreds of decisions in FOIA cases every year.  Most do not break new legal ground or attract media attention.  As 2018 draws to a close, the legal eagles of FOIA Advisor -- Allan Blutstein (AB) and Ryan Mulvey (RM) -- identify the decisions that stood out to them (in chronological order).

1. Argus Leader Media v. USDA (8th Cir. May 8, 2018) -- on appeal filed by a private intervenor following bench trial, affirming a district court decision that contested Supplemental Nutrition Assistance Program data were not protected by Exemption 4.

RM comment: The Argus Leader case has been ongoing for a number of years, and we’ve mentioned it a few times at FOIA Advisor. I think the circuit decision bears noting, if only because there’s a pending petition for writ of certiorari under the name Food Marketing Institute v. Argus Leader Media. Justice Gorsuch issued a stay, thus blocking the disclosure of any records. I understand that many court watchers expect the petition to be granted.

AB comment: The appellate court made an important point about the competitive harm prong of Exemption 4, namely that the test is not whether the disclosure would be commercially “useful” to a competitor; rather, the disclosure must be likely to cause substantial competitive harm. In my experience, business submitters often do not appreciate this distinction. USDA was wise to bail on this case following a rare bench trial.

2. Animal Legal Def. Fund v. USDA (N.D. Cal. May 25, 2018) -- holding that FOIA’s expedited processing standard of "imminent threat to life or safety of an individual" excludes threats to animals -- in this case, a Siberian-Bengal tiger named "Tony."

AB comment: This appears be the first FOIA case to consider whether animals qualify as “individuals” under the statute, which warrants inclusion on this list despite the predictable result.

RM comment: The Ninth Circuit also dealt with the question of animals and statutory interpretation earlier this year in Naruto v. Slater, which concerned standing under the Copyright Act. That’s the famous “monkey selfie” case. Obviously, statutory standing isn’t really related to the expedited processing standard. But it’s always entertaining to read these sorts of opinions.

3. Morley v. CIA (D.C. Cir. July 9, 2018) -- in a 2-1 decision, the D.C. Circuit affirmed the district court's ruling that plaintiff was not entitled to attorney's fees in connection with a 15-year-old case involving JFK assassination records.  The majority found that the CIA did not act unreasonably by referring plaintiff to the National Archives and Records Administration, which possessed the requested records.  The dissenting judge asserted that the majority gave too much deference to the lower court, misapplied the relevant test for determining fee awards, and permitted the CIA to evade its FOIA responsibilities. 

AB comment: The majority claimed that it followed the Circuit’s familiar four-factor test for analyzing fee awards, but it expressly criticized the first three factors as being inconsistent with the statute. If the Supreme Court takes up the issue, we know how Justice Kavanaugh will rule: he was in the majority.

RM comment: I’m sympathetic to Judge Henderson’s dissent, which fairly criticized the majority’s application of the four-factor test for fee awards. It’s also amazing that, after fifteen years of litigation, of which eight concerned attorney’s fees, and multiple remands from the circuit court, the requester should go away empty-handed.

4. Judicial Watch v. U.S. Dep’t of Homeland Sec. (D.C. Cir. July 17, 2018) -- in a 2-1 decision, reversing the district court’s decision that plaintiff’s complaint failed to adequately allege a “policy or practice” claim against the Secret Service based on a history of delayed responses.

RM comment: This was an interesting decision, especially for those of us who follow the “policy or practice” case law. It is generally accepted that Payne-type claims cannot be predicated on delay alone. Judicial Watch rather ingeniously set up its fact pattern by keeping tracking of multiple requests (and lawsuits) concerning the same categories of records, and arguing that the Secret Service prioritized its processing based on an expectation that Judicial Watch would end up litigating anyway. Regardless of the merits of the underlying claim, I think this case will inspire other creative FOIA requesters to set-up strategic litigation in similar fashion.

AB comment: Interesting indeed. I cannot remember another recent FOIA decision in which the majority and dissent were so apart in their views on the fundamentals of the statute. I also was surprised -- but not disappointed -- that Judge Srinivasan, who was on President Obama’s shortlist to replace Antonin Scalia on the Supreme Court, wrote a dissent that one might have expected from Scalia himself.

5. Rosenberg v. DOD (D.D.C. Sept. 27, 2018) -- ruling that agency’s Exemption 5 withholdings were improper because statute’s “foreseeable harm standard” required government to “do more than perfunctorily state that disclosure of all the withheld information—regardless of category or substance—’would jeopardize the free exchange of information between senior leaders within and outside of the [DOD].’”

AB comment: The Department of Justice maintains that the foreseeable harm language enacted in 2016 is inconsequential. This decision, however, seems to provide it with a little bite. I expect requesters to latch onto this decision in contesting Exemption 5 withholdings going forward.

RM comment: Last year, in Ecological Rights Foundation v. FEMA, a judge in the Northern District of California issued the first opinion that substantively addressed Section 552(a)(8)(A), and that case made our list of the top decisions of 2017. Here, Judge Mehta, has really done a deeper dive. As Allan suggests, DOJ has routinely argued that the “foreseeable harm” standard merely codifies existing practice under the Obama-Holder “presumption of openness.” The Rosenberg decision decidedly rejects that line argument. Where will courts go next? I think we need to flesh out the application of the standard under other statutory exemptions. We need clarity on whether (and when) certain exemptions can be non-discretionary for “foreseeable harm” purposes (e.g., Exemption 6). And we need to test the limits of the “categorical approach” to identifying harms that Judge Mehta accepted.

6. Kwoka v. IRS (D.D.C. Sept. 28, 2018) -- concluding that IRS could not rely on Exemption 3, in conjunction with 26 U.S.C. § 6103, or Exemption 6 to categorically withhold names of FOIA requesters and their organizational affiliations from the agency’s FOIA log.

AB comment: The IRS rigorously administers Section 6103 of the Internal Revenue Code, which prohibits the disclosure of tax returns and “return information.” Thus, it is always notable when a court rejects the IRS’s use of it.

RM comment: There were a handful of Section 6103 cases this year, but I think this was the only one where the court rejected the agency’s use of Exemption 3. It seems the IRS could have avoided a loss if it had more rigorously reviewed the records at issue, particularly as concerns first-party requesters. I think there is a fair argument to be made that the identities and organizational affiliations of requesters don’t qualify as “return information.” But the court didn’t address that threshold question, and the plaintiff appeared to concede the point.

7. Judicial Watch v. U.S. Dep't of State (D.D.C. Dec. 6, 2018) -- ordering the parties “to meet and confer to plan discovery into whether [Hillary] Clinton used a private email to stymie FOIA, whether State’s attempts to settle [this] case in late 2014 and 2015 amounted to bad faith, and whether State’s subsequent searches have been adequate.” The court notably described Hillary Clinton's use of a personal email server as “one of the gravest modern offenses to government transparency." And it minced no word for the government, either: "At best, State's efforts to pass off its deficient search as legally adequate during settlement negotiations was negligence born out of incompetence . . . At worst, career employees at the State and Justice departments colluded to scuttle public scrutiny of Clinton, skirt FOIA, and hoodwink this court."

AB comment: Granting discovery to a FOIA plaintiff is unusual, but rarer still is the withering criticism that the court unloads here. A big win for Judicial Watch. Perhaps 2019 will bring an end to the saga of Hillary Clinton’s emails.

RM: comment: Judge Lamberth may have been harsh in his criticism, but he was fair. The State Department miserably handled many of the FOIA requests concerning Secretary Clinton. Hopefully, this rare grant of discovery will serve as a wake-up call to State, as well as a warning to other agencies.

8. Elec. Privacy Info. Cent. v. IRS (D.C. Cir. Dec. 18, 2018) -- affirming district court dismissal of FOIA request for President Trump’s income tax records on the basis of Exemption 3 and I.R.C. 6103.

RM comment: This case bears mention, in my mind, for two reasons. First, the media have discussed it quite a bit, and everyone loves to consider the mandatory release of President Trump’s tax records. Second, it is a clear rejection of a series of arguments about various subsections of 6103 that were dead on arrival. With respect to administrative exhaustion, however, I appreciate the circuit’s criticism of the IRS using its FOIA regulations to try and shift the burden of demonstrating that records are subject to disclosure onto the requester.

AB comment: When plaintiff filed this lawsuit, it brazenly claimed that there “has never been a more compelling FOIA request presented to the IRS.” If “more” had been “less,” I would have agreed. The agency deserved to be assailed for its overreach on the administrative exhaustion issue. That error should not be enough, however, to warrant an award of attorney’s fee and costs should plaintiff have the temerity to request them.

Commentary: "Day 21" Lawsuits

When an agency fails to issue a final determination by the statutory deadline (usually 20 business days), the requester may sue the agency on the next business day regardless of the reason for the delay.  Do agency FOIA officials have good reason to gripe when requesters submit complex requests and file suits as soon as they can?  Should the statute be amended? Ryan Mulvey (RM) and Allan Blutstein (AB) weigh in below.  Kevin Schmidt is on paternity leave.  

RM:  This is an interesting topic.  In my own experience, I've rarely filed lawsuits right after passage of the statutory deadline, whether it be 20 or 30 business days.  This is because I can appreciate the complexity of some of my requests, and I understand that many FOIA offices are overwhelmed.  In the end, one of the determinative factors in choosing to litigate is whether the agency is keeping me informed of the work being done.  I want to know whether my request has been looked at, where it is in the processing queue, and whether there is an estimated date of completion. 

The best FOIA officers are those who reach out and invite a requester to be part of the effort to design a search.  Of course, I wouldn't expect all agencies to be open to that practice, but every FOIA office should strive to keep requesters informed of what's being done.  The last thing an agency should do is maintain radio silence or ignore a requester's correspondence about a request or appeal.  In one case, I spent roughly three years sending emails and leaving voicemails with officials at the Department of Labor; I only spoke once with a FOIA analyst, and later received two or three emails months after "successful" OGIS mediation.  My sympathy for an agency quickly ends once it starts to ignore me or, worse yet, gives me a false or misleading impression of what work has been done.

Now, in some cases, I think the honest perspective in the requester community is that litigation will be the only way to get a reasonably-timed response.  There are agencies that really do seem to ignore requests unless a court gets involved.  The State Department and the CIA come to mind.  I'm also reminded of Judicial Watch's case against the Secret Service.  These agencies need to focus on improving their tech infrastructure and procedures for handling requests; I understand there are many inefficiencies that contribute to the backlogs.

As for changing the statute, I don't see how that would improve the situation.  Again, it would be better to modernize so agencies like the IRS aren't duplicating hard drives to manually search for email records.  And steps could be taken to minimize the delay associated with sensitive review and White House equities consultation.  It's probably a fair bet that the requesters most likely to sue are being subjected to these forms of politicized FOIA processing. 

AB:  This apparently was a hotly debated topic last week at the national training conference of the American Society of Access Professionals. But I am not entirely sure why.  Of the 500+ FOIA lawsuits filed every year, I suspect that fewer than 50 are filed immediately after requesters constructively exhaust their administrative remedies or within the first week.  Even if that number is higher, it is a tiny percentage of the number of FOIA requests that are backlogged at any given time.  Thus, agencies are perhaps more fortunate than they realize.

I agree with you that keeping requesters informed is likely to reduce lawsuits generally, but let's face it, certain "day 21" lawsuits are filed because the requester wants to earn a splashy headline, please a valuable donor or client, and/or try to box out other requesters who want the same documents.  No amount of good-faith agency communication with the requester will prevent these type of lawsuits.   

Agency officials who feel aggrieved by such lawsuits can take some small comfort in the fact that plaintiffs will have a more difficult time proving that they are eligible for attorney's fees and costs under the "catalyst" theory.  And if agencies are concerned that non-litigant requesters are being penalized by such lawsuits, nothing prevents an agency from simultaneously releasing the records responsive to a lawsuit to other requesters -- or to the press or to the entire world for that matter.  

With respect to amending the statute, there will always be day-after lawsuits no matter the deadline is.  If Congress could be persuaded to appropriate a few more million dollars annually to OGIS, I would not be opposed to a mandatory mediation period as a condition of filing a lawsuit.  

RM: You make a good point about "day 21" lawsuits that aim for the splashy headline.  I don't think these are unjustifiable if the records at issue are newsworthy and serve the public interest, particularly if the agency that controls them is one that requesters usually need to sue.

I have had at least one agency offer to release records to me concurrent with their release to a litigant.  I know some folks in the requester community might not like this practice, because it deprives them of an opportunity for "exclusive use."  But that gets into a whole other topic, which is also relevant to "Release to One, Release to All."

AB:  Unless we want to add a "good cause" or need-to-know" requirement to the FOIA, which essentially would be a reversion to the APA, agencies will have to bear with requests and lawsuits that are pursued for all sorts of questionable reasons.  Candidly, I have no problem with requesters who are quick to pull the lawsuit trigger in order to fast-track responses from any agency, let alone from agencies whose requests linger in black holes.  If certain requesters can afford the court fees and labor costs, more power to them.  It is the American way of life to be able to pay more in exchange for better or faster service.

Commentary: First "advisory opinion" issued by OGIS

The FOIA requires the Office of Government Information Services to offer mediation services to resolve disputes between requesters and agencies, and it authorizes OGIS to issue advisory opinions "at the discretion of the Office or upon request of any party to a dispute."   On Wednesday, July 17, 2018, after teasing Twitter followers about a "big announcement," OGIS issued an "advisory opinion" -- the first in its history -- concerning agency communications with requesters.  The staff of FOIA Advisor -- Allan Blutstein (AB), Kevin Schmidt (KS), and Ryan Mulvey (RM) -- share their views about OGIS's historic action.

AB:  It reminded me of Geraldo Rivera's "The Mystery of the Al Capone's Vaults," an overhyped 1986 television special that infamously failed to deliver on its tantalizing promises.  The content of OGIS's guidance is useful, to be sure, but it  is not the "advisory opinion" that Congress or the requester community envisioned -- that is, an opinion about a specific dispute between parties.  So why the embellishment?  OGIS has consistently claimed that issuing such opinions would undermine its role as a neutral mediator.  Fair enough.  DOJ should be the government's final decision-maker on the interpretation of the law in any event.

RM:  Yes, the substance of OGIS's "advisory opinion" is helpful but less than groundbreaking.  I'm not sure I agree, however, that Congress intended these sorts of opinions to address only particular disputes.  Section 552(h)(3) is ambiguous.  In my mind, the whole concept of an advisory opinion suggests it is meant to be more general and provide an interpretation of the law that transcends any specific case.  Here, OGIS's opinion was issued at its own discretion and based on its experience mediating a number of disputes.  I don't think that's objectionable.  And as far as I can tell, the legislative history is silent about what Congress actually envisioned OGIS's role to be with advisory opinions, although DOJ unsurprisingly raised "concerns" that OGIS would be given "any sort of policymaking and adjudicative role with respect to FOIA compliance."  I'd just add that it's unclear what OGIS even thinks its authority should be; the agency issued a proposed rule at the end of 2016 to introduce regulations implementing its statutory mission, but the rule was never finalized and inexplicably failed to address advisory opinions.

KS: The tinfoil hat side of me believes this advisory opinion may have been a trial run. As Ryan noted, DOJ is not happy that OGIS is able to issue any sort of opinion on FOIA compliance. So OGIS wanted to test the water and put out a rather unobjectionable first advisory opinion and see what sort of feedback they get. DOJ puts out guidance related to improving agency communication with requesters on a regular basis, so this isn't breaking any new ground. At least publicly, I'd say mission accomplished, but who knows what sort of feedback they've gotten behind the scenes. We won't be able to glean much information about OGIS' intent until they put out another advisory opinion.

FOIA Commentary: Vexatious Requesters

On June 7, 2018, the State of Connecticut enacted a law that permits its Freedom of Information Commission to relieve an agency from responding to a "vexatious" requester for up to one year.  The grounds for being considered vexatious can include the number of requests, the scope of the requests, the nature or content of the requests, and/or a pattern of conduct that amounts to abuse. The staff of FOIA Advisor -- Allan Blutstein (AB), Kevin Schmidt (KS), and Ryan Mulvey (RM) -- share their views on the whether the federal government should adopt a similar provision.  

RM:  The issue of so-called "vexatious" requesters is a difficult one, in my mind, if only because the term "vexatious" is so hard to define.  Are you vexatious if you merely submit a duplicate request?  What if you submit multiple requests to the same agency on the same day, but those requests are on different subjects?  Should an agency treat someone as a vexatious requester if he is responsible for some pre-defined percentage of an agency's FOIA processing queue or backlog, regardless of any other considerations?  Any approach will present a unique set of problems. 

The new Connecticut law handles the question is an interesting way by assigning actual responsibility for determining whether a requester is vexatious to a state-wide commission.  Some of the factors to be considered include the number of requests filed, their scope, their subject matter, and whether the requester has exhibited a pattern of abusive conduct--whatever that is supposed to mean!  I appreciate removing the agency from the equation, but this still leaves the government too much discretion.  The state legislature should have given a clearer definition of "vexatious," and better procedural protections for an aggrieved requester.  The only option for appeal is filing a lawsuit.

I would be disinclined to see the federal government adopt a similar provision.  Do we really want agencies to be making these open-ended inquiries into vexatiousness?  Could some entity, say, OGIS or DOJ-OIP, handle the matter government-wide?  There has been a lot of politicization of FOIA processes during the Trump and Obama Administrations.  Allowing an agency to dismiss a "vexatious" request would probably just open the door to more abuse.  Plus, do we really know if this is wide-spread problem?  I want to see the data.

AB:  Interestingly, Ryan, NARA's FOIA Advisory Committee considered this issue a few years ago in the context of fee reform and it raised a number of the same concerns that you identified. I believe the Committee ultimately abandoned the idea, which strikes me as the right call.  As it stands, federal agencies are not required to process unreasonably described requests or to conduct wide-ranging, unreasonably burdensome searches.  If we are concerned about the rising burden of voluminous requests (and we should be), I would prefer to amend the fee provisions -- e.g., eliminating favored fee categories and/or reducing free search time to 30 minutes -- than to add a nebulous "vexatious requester" exception.  

KS:  I sympathize with the fact that some members of the public may use public records laws in a way that drowns some agencies in requests, but, like Ryan, I have serious issues with proposals I've seen to handle the issue. I also think it's possible that the treatment may be worse than the disease in some cases. As Ryan discussed, there's a whole can of worms that's opened if "vexatious requester" laws take effect.  The Connecticut law doesn't specifically address, for example, if or how decisions and the rationale to label a requester as vexatious will be publicly posted or explained. Without releasing enough public information, that could lead to FOIA requests to obtain information about the process of banning requesters. 

I'm not familiar with the issues that led to this proposed change (although proponents touted anecdotes of individuals filing numerous requests over a certain time frame), but I am confused as to why this would be an issue when the state charges fees tor search time and copies. Presumably, charging fees in accordance of the law would deter a deluge of requests. 

Put me down as opposed to any proposal to bring this to the federal government. The last thing we need is another federal entity dedicated to adjudicating agency complaints about requesters. How much already precious staff time would be wasted on writing up complaints?

Commentary: Let the sunshine in

On March 13, 2018, the Senate Judiciary Committee will resume its tradition of holding a FOIA hearing during Sunshine Week.  If they were Senators for a day, here are the questions that the staff of FOIA Advisor -- Allan Blutstein, Kevin Schmidt, and Ryan Mulvey -- would ask the witnesses from the government and the requester community.

AB:   Among the questions I would want to ask the government witnesses is whether they support or oppose updating the Office of Management and Budget's 1987 FOIA fee guidelines.  In light of changes in technology and case law in the past thirty years, OMB's guidelines appear to be outmoded in several respects.  I also would like to hear the government's suggestions for reining in litigation-related costs, which have increased for the past eight consecutive fiscal years and topped $40 million in FY 2017.

To the requester community, I would ask the witnesses  -- presumably all of whom will be active FOIA requesters -- whether they have availed themselves of the dispute resolution services offered by the Office of Government Information Services, which was created ten years ago primarily to help the public resolve FOIA disputes.  And I would ask whether the witnesses would support any statutory provision addressing the issue of "vexatious" requesters, as certain local and foreign governments have enacted.

RM:  With respect to the government, I'd be interested in know how many agencies have been diligent in modernizing their reading rooms and actually starting to proactively disclose frequently-requested records, as set forth in the FOIA Improvement Act of 2016's "Rule of Three."  I'd also like to know how many agencies have updated their FOIA regulations.  Section 3 of the Improvement Act required agencies to implement the statutory amendments within 180 days; I suspect many agencies have yet to do so.  More globally, however, I'd like to know whether OIP has pushed agencies to update other aspects of their FOIA policies and procedures, including fee provisions.  Even with the introduction of DOJ's template or "model" FOIA regulations, a few agencies are still sticking with OMB's outdated "organized and operated" standard for defining news media requesters, or they're even inventing their own extra-statutory requirements, such as the SEC with its proposed definition of an "educational institution."

For requesters, I'd like to hear more anecdotes about how FOIA customer service has changed under the Trump Administration.  There's been a lot of accurate reportage about "sensitive review" processes being enhanced by political appointees.  Yet I've personally experienced some minimal improvements at a handful of agencies, perhaps because of an effort to resolve long-pending requests from the backlog.  I also want to know whether any sophisticated requesters--that is, those who typically appeal or litigate their requests--have had success in getting agencies or courts to take the newly-codified "foreseeable harm" standard, 5 U.S.C. § 552(a)(8)(A)(i), seriously.  The only reported decision I've read made our list for the "Top FOIA Decisions of 2017."  I'd like to know if we missed any, or if the standard is being considered at the administrative level.

KS:  For the government, I have some questions about the launch of the new FOIA portal FOIA.gov. Some preliminary praise is due for the FOIA.gov build. In my limited time with it, it seems functional and easy to use. The same cannot be said for most government websites. From my quick checking, I found components (I checked HQ/Office of the Secretary for most) of the following agencies are not linked in the FOIA.gov system: HHS, DHS, HUD, State, USDA, EPA (which is still on FOIA Online). Are those agencies expected to join the system and if so, when will that happen? Speaking of, what is the fate of FOIA Online with the release of FOIA.gov? DOJ OIP should be asked about its own record in responding to complex requests. According to FOIA.gov, OIP has an average of 483 working days for complex requests with 35 requests older than 400 days in FY2016 and 8 in FY2017. What gives? .

I concur with Ryan here on the requester side. It will be interesting to see what the requester community says during Trump's first Sunshine Week. I wonder if some of the usual suspects may put a different spin on a Sunshine Week project or if we'll get most of the usual reports. The backlog point is interesting as well. EPA has publicly announced its intention to focus on its backlog of requests -- presumably at the expense of new requests. I wonder if other agencies are following suit. Overall, the FOIA experience for me in the last year has been largely the same, so I'm excited to find out what the community has in mind. 

Commentary: Top Exemption 4 decisions of 2017

The large majority of FOIA decisions issued each year resolve disputes concerning the adequacy of agency searches and/or the withholding of records on privacy, law enforcement, or civil discovery grounds.  Typically, only a small percentage of FOIA disputes involve Exemption 4, a provision that protects “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” But Exemption 4 cases are among the FOIA’s most legally complex and can have a big impact on a company’s bottom line and business practices.  As 2018 gets under way, Allan Blutstein looks back at some of the key Exemption 4 decisions issued over the past twelve months.    

Am. Small Business League v. DOD (9th Cir.) (unpublished)

In 2014, the Northern District of California ordered the Pentagon to release documents concerning Sikorsky Aircraft’s participation in the agency’s Comprehensive Small Business Subcontracting Plan.  In reaching its decision, the district court rejected as “not enough” Sikorsky’s declaration that the “‘[r]elease of the information . . . would cause substantial harm to the company’s competitive position,’ on the basis that a competitor ‘could’ use such information to assess the strengths and weaknesses of Sikorsky’s bid proposals to the agency.” 

On appeal, the Ninth Circuit reversed the district court and held that Sikorsky’s declaration “at least created a genuine issue of fact.”  The Circuit observed that Sikorsky had identified its competitors and averred that those competitors “could use the redacted information to gain a significant competitive advantage.  Nothing more is required to gain protection from disclosure under Exemption 4, and the district court erred in ruling otherwise.”

Frank LLP v. Consumer Fin. Prot. Bureau (D.D.C.)

In a decision otherwise favorable to the government, the court ruled that CFPB had an improper policy of treating records provided to it in response to civil investigative demands (CIDs) as "voluntarily" submitted -- and therefore entitled to greater protection -- for Exemption 4 purposes.  The court reasoned that such submissions should be treated as mandatory because CFPB possesses the legal authority to issue CIDs (which are functionally equivalent to administrative subpoenas), as well as the power to seek judicial enforcement if a CID is ignored.  Going forward, this ruling requires CFPB to evaluate whether releasing CID-obtained records will likely cause substantial competitive harm to the submitter, as opposed to evaluating whether the submitter customarily treats those records as confidential. 

Ctr. for Pub. Integrity v. U.S. Dep't of Energy (D.D.C.)

Here, the court rejected plaintiff’s novel argument that agencies are automatically precluded from invoking Exemption 4 to withhold records related to a corporation’s wrongdoing -- in this instance, illegal lobbying.  The court’s other notable ruling addressed whether the corporation's production of documents in response to an agency “notice letter” was voluntary or involuntary.  Although the agency component that possessed the legal authority to compel production did not author the notice letter, the court found that the agency's letter offered the corporation "no real choice" and that the "very real specter of government compulsion" was sufficient to render the production involuntary. 

Det. Watch Network v. U.S. Immigration & Customs Enforcement (2d Cir.), cert. denied 583 U.S. __ (2017)

The Second Circuit dismissed an attempt by private detention facility contractors to overturn the Southern District of New York’s 2016 decision that the unit prices, bed-day rates and staffing plans appearing in government contracts were not confidential.  Notably, the government declined to join the appeal and let stand the district court’s threshold finding that the negotiated contractual terms were not “obtained from a person” for Exemption 4 purposes, contrary to numerous decisions in multiple circuits.   

Commentary: The Top Five FOIA Decisions of 2017

Federal courts issue hundreds of decisions in FOIA cases every year.  Most do not break new legal ground or attract media attention.  As 2017 draws to a close, the legal eagles of FOIA Advisor -- Allan Blutstein (AB) and Ryan Mulvey (RM) -- identify the top five cases that stood out to them (in no particular order).   

1.  Price v. U.S. Dep't of Justice Attorney Office (D.C. Cir.) -- ruling in 2-1 decision that plea agreement waiving criminal defendant's FOIA rights "offends public policy and is therefore unenforceable." 

See FOIA Advisor's previous commentary on this case here.  

2.  Detroit Free Press v. DOJ  (S. Ct.) -- denying requester's petition for certiorari, leaving in place Sixth Circuit's decision that mugshots are protected from disclosure by Exemption 7(C).  

AB Comment:  Because the Sixth Circuit's decision brought itself in line with other circuits that have addressed the issue, this petition faced extraordinarily long odds.     

RM Comment:  And that Sixth Circuit decision, despite what the petitioner and amicus argued, still preserves Exemption 7(C)'s important balancing test for considering a person's recognized, non-trivial privacy interest in his mugshot against the public interest interest in disclosure.

3.  Lucaj v. FBI (6th Cir.) -- concluding that documents exchanged between DOJ Criminal Division and foreign governments could not be protected under Exemption 5 because they did not meet the "inter-agency" or "intra-agency" threshold. 

AB Comment:  The court declined to expand the scope of Exemption 5 as other circuit's have done, and instead relied upon a cramped reading of Department of Interior v. Klamath Water Users Protective Assn., 532 U.S. 1 (2001).

RM Comment:  Agreed.  In my mind, the Klamath court was pretty clear that it was avoiding the question of whether Exemption 5's threshold requirement could be satisfied on a "consultant corollary" theory.  Unlike the Native American tribes at issue in that case, I find it hard to believe that the Austrian government wasn't serving in a consulting capacity by responding to a DOJ Criminal Division "request for assistance."

4.  AquAlliance v. U.S. Bureau of Reclamation (D.C. Cir.) -- finding that agency properly invoked Exemption 9 to withhold information regarding the construction, location, and depth of water wells; rejecting plaintiff's argument that the exemption applied to oil and gas wells only.  

AB Comment:  A rare Exemption 9 appellate case, which is enough to make this list.  

RM Comment:  Honestly, I'd never read an Exemption 9 case before this opinion issued.

5.  Ecological Rights Found. v. Fed. Emergency Mgmt. Agency (N.D. Cal.) -- the first reported decision to cite the statutory provision enacted in 2016 that requires an agency to demonstrate that disclosure would reasonably harm an interest protected by an exemption, 5 U.S.C. § 552(a)(8)(A)(i)-- in this case Exemption 5 (deliberative process privilege).  

AB Comment:  It is unclear to me that the result would have been different in the absence of the so-called "reasonably foreseeable harm" provision.  But I expect FOIA litigants to be citing this case for the foreseeable future.

RM Comment:  I'm not surprised that the "reasonably foreseeable harm" provision was first applied in a case involving the deliberative process privilege.  It seems most applicable in that context.  I'm still unsure how it will work with the other exemptions.  (I also don't know what the other part of the same statutory clause ("disclosure prohibited by law") adds to Exemption 3.)  In any case, it will be interesting to see whether other courts require so detailed an explanation of how disclosure of specific records may harm the particular deliberative processes that they implicate.

FOIA Commentary: FOIA at any price?

In a 2-1 decision issued last week, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the Department of Justice could not deny a criminal defendant's FOIA request about his case even though he had expressly waived his FOIA rights in a plea agreement.  The majority reasoned that such a waiver provision serves "no legitimate criminal-justice interest" and was therefore unenforceable.  The dissent argued that the waiver should have been upheld because the requester had agreed to it knowingly, voluntarily, and intelligently. Moreover, the dissent viewed the majority's "legitimate criminal-justice" standard as a distortion of Supreme Court precedent. The staff of FOIA Advisor -- Allan Blutstein (A), Ryan Mulvey (R), and Kevin Schmidt (K) -- weighs in.

A.   I was persuaded by the dissent -- a shocking conclusion from a law-and-order conservative, I know.  The Department of Justice should be able to rely upon plea bargains to prevent criminals from endlessly trying re-litigate their cases through infinite FOIA requests -- a burden that the FBI in this case apparently failed to fully explain.  Other FOIA requesters who settle their cases in litigation also should be precluded from requesting once-disputed records if the joint stipulation of dismissal includes an express waiver of FOIA rights.  If the stipulation is silent on the matter (which is typically the case), however, I would permit the requester to make a subsequent request for the same records.

R.  I agree with you, Allan.  In the end, this seems like a straight-forward case.  Even if we accept the Court's standard--namely, that a criminal defendant's waiver of any particular right must serve a "legitimate criminal-justice interest"--the result here seems to foreclose a FOIA waiver ever being included in a plea agreement, despite the Court's claims to the contrary.  The Court (correctly, I think) held that Congress has never affirmatively prohibited the waiver of FOIA rights and that the structural purpose of the statutes isn't frustrated by waiver as such.  But the analysis of the public policy concerns leaves little room for factual distinction.  What criminal defendant isn't capable or interested in using the FOIA as a means of discovery of exculpatory evidence or to prove ineffective assistance of counsel?  And remember that the requester in this case only agreed to a limited waiver.  I don't think it is coincidental that every other court to address this issue has come to a different result.

As for requesters who stipulate dismissal of FOIA claims as part of a "settlement," I agree that they should be held to the terms of the agreement.  But I do wonder whether there are any changes in legal standards or factual circumstance that render those stipulation agreements unenforceable.  That's certainly the case with res judicata and collateral estoppel in instances where a court enters final judgment.

K.  I'll leave the legal analysis to my more qualified colleagues, but I don't see any great injustice in an agreement that includes waiving rights under FOIA. Shouldn't a defendant be able to use that option to leverage a better settlement? And by my reading, this decision only decided whether or not the defendant waived his rights to requesting the records. In other words (and please correct me if I missed this), what's stopping an associate or friend of the defendant from requesting these records? I don't see anything prohibiting the defendant from using records obtained in that fashion. 

A.   I agree with Kevin that a criminal defendant should be able to use FOIA as a bargaining chip in plea negotiations. To Kevin's point about the scope of the waiver, it is true that a third party may submit a request and then provide any disclosed records to the criminal defendant.  But keep in mind that in response to a third party request, DOJ would be compelled to withhold certain records, or to refuse to confirm or deny their existence, on privacy grounds.  Thus, the waiver does have some teeth.   

R.  Kevin's insight brings us back to one of the dissent's major points: Price knowingly, voluntarily, and intelligently consented to the terms of his plea agreement.  Any criminal defendant should be able to do the same in negotiating the terms of his agreement.  Kevin's comments also reminded me of Judge Brown's reference to "surrogate" requesters.  I think Allan is right that DOJ would withhold records, or issue a Glomar, on privacy grounds.  Moreover, if a request contained a Privacy Act waiver, I bet DOJ would refuse to accept it as valid.  It would instead treat the request as a creative attempt to get around the terms of the plea agreement.  The burden would then be on the requester to prove otherwise.

K.  Re-reading the decision and what sticks out is how the government apparently left this key point out of their briefs but discussed it at oral arguments: "Prisoners frankly have a lot of time on their hands and they write a lot of FOIA requests, and it is a burden to agencies especially like the FBI."  That would seem to be a key, if crude, point in the government's favor. Considering the court left in place the arbitrary "criminal justice interest" standard, I suspect the government won't hesitate to include some of the missed points from this case the next time around.

Commentary: DOJ's summary of FY 2016 annual reports

Yesterday DOJ's Office of Information Policy released its summary of agencies' fiscal year 2016 annual FOIA reports.  The staff of FOIA Advisor -- Allan Blutstein, Kevin Schmidt, and Ryan Mulvey -- share their observations.

A.    A good deal of this data was made available by DOJ six weeks ago, which I am happy to revisit, but I'll start by pointing out several new items that initially caught my eye.  The bad news first:  the average time to process "simple" requests skyrocketed by nearly 22 percent (p. 12).  And a pet peeve of mine: the government continues to ignore consultations that agencies have with the White House (p. 14).  Some good news: the average time to process administrative appeals decreased by 30 percent (p. 17).  

R.    The data on exemptions are interesting (pp. 7-8).  Exemptions 7(C) and 7(C), taken together, accounted for over half of all instances of redaction (27.87% and 23.64%, respectively), and Exemption 6 was the single most cited exemption (29.90%).  Use of Exemption 5 (8.53%) only slightly increased from FY 2015, but that's still way down from FY 2013 and FY 2014 levels.  Of course, I'm not sure whether any of this really tells us anything about how agencies are actually processing responsive records though.  The use of Exemption 6, for example, to withhold information such as personal phone numbers or portions of email addresses likely skews things a bit.  Nearly every agency record has some uncontroversial (b)(6) material that is withheld.  If we were just looking at the redaction of the sort of substantive information most requesters are trying to get, I expect the use of Exemption 5 would skyrocket.  I'd also be interested to know, with respect to Exemption 5, which privileges have been cited and how frequently.

Some other thoughts: I'm amazed that NARA is processing all of the "ten oldest pending requests," which date from between 1993 and 1998 (p. 11).  Also, I agree with Allan about the deficiency of the discussion of consultations (pp. 14-15).  There's some ambiguity, I think, in what the reported numbers represent.  It'd be better for agencies to report how many consultation requests have been sent out and returned, and to whom they were sent, rather than account for how many were received and "processed."

K.    Disappointed that litigation-related costs as a percentage of FOIA has remained constant since FY 2009 at about 7% (p. 19). The "presumption of openness" and the increase of proactive disclosures noted on p.19-20 don't seem to be having an effect on litigation, although 85% of the proactive disclosures are from NARA. 

If agencies received 6,159 consultations in FY 2016 (p. 14), how many consultation requests did the White House receive and how many of those overlap with the consultations noted in this report? Thoughts? 

A.   The existence of OGIS also apparently has not driven down the percentage of litigation costs either, Kevin, though it is fairly powerless to prevent lawsuits based on the agency's failure to timely process a request.  Unrelated,  I want to briefly raise the statistic touted by DOJ that the government has a 91 percent "release rate" (pp. 5-6, 19).  This does not mean that the government released records in response to 91 percent of all requests filed.  Rather, it means that when the government actually processed records in response to a request (approximately 63 percent), the government released at least a portion of at least one page.   So it is not the most meaningful measurement of the government's transparency.

R.    That's a good point about the 91% "release rate," Allan.  And I can imagine that a fair number of requests in the "Released in Part" category on page 6 resulted in production of records that had most meaningful content withheld.  On a separate note, I was disappointed to see the FOIA backlog increase by nearly 12% (pp. 9-10).  I suppose between the loss of momentum from the Obama Administration's efforts to decrease the backlog, on the one hand, and the deluge of requests pouring in about Clinton and Trump, on the other--not to mention limited agency resources--an increase was inevitable.  I can't say I'm optimistic for the coming year.

K.    The 91% "release rate" has long been criticized by the FOIA community, including by the National Security Archive in its newsletter today:

The figure is disingenuous because, as Archive Director Tom Blanton told the Senate Judiciary Committee in 2015, “The Justice Department number includes only final processed requests. This statistic leaves out nine of the 11 reasons that the government turns down requests so they never reach final processing. Those reasons include claiming ‘no records,’ ‘fee-related reasons,’ and referrals to another agency. Counting those real-world agency responses, the actual release rate across the government comes in at between 50 and 60%.”

I'll end with a wish list for the FY 2017 summary:

1. Stop using the disingenuous "release rate"
2. Start including data on White House consultations 
3. Include more specificity on Exemption 5

Commentary: FOIA Search Survey

Last week, the National Security Archive (NSA) and the Project on Government Oversight (POGO) published the results and analysis of their survey of agency FOIA personnel and requesters about the search process.  The staff of FOIA Advisor -- Allan Blutstein, Kevin Schmidt, and Ryan Mulvey -- weighs in.

A.  A useful survey and I largely agree with NSA and POGO's conclusions.  If I were to quibble about anything, it would be with the following paragraph:

Unfortunately, statistics show extremely large percentage of FOIA requests (over 16 percent) are denied because an agency claims that “no responsive records were found.”  But many of these “no responsive document” denials are in fact the result of improper or poorly conducted searches.  Administrative appeals often result in a second, more thorough search that finds the documents requested.

Based on my experience as both agency counsel and a requester, I do not believe that the percentage of no-record responses is "extremely large."  And I would say that "some," not "many" of those responses are due to inadequate searches. Similarly, I would say that appeals "sometimes," not "often," result in the discovery of additional requested records.  In the absence of hard facts, of course, we'll have to agree to disagree about which adjectives are more appropriate.    

R.  One of the shortcomings of the survey is its small sample size: 57 responses, of which only 30 were from processors.  Considering the bulk of the analysis centers on what agencies are doing, I'd have liked to see more input from the government.  Otherwise, I agree that the conclusions are generally good.  

The lack of government-wide guidance on how, precisely, an agency should conduct a search is one source of a lot of the identified problems.  But that's probably unavoidable so long as agencies have varied infrastructures.  Consider the IRS.  In my experience, the IRS tries to avoid searching e-mail, for example, because it doesn't allow employees to self-search (at least, that's what IRS FOIA officers have told me).  The alternative approach requires a lot of time and labor investment.  The IRS also complains that it lacks modern hardware and software.  Such technological limitations have a real impact on how the FOIA is implemented, especially in an increasingly high-tech world.

As for the "no records" issue, agencies regularly tell me that they don't have any responsive records.  I'm sure that many of these responses reflect a good faith search.  A few of them, however, may be based on a reluctance to deal with complex or politically sensitive requests.  That many agencies rely on components or employees to actually carry out a search only facilitates such poor efforts in a limited number of cases.  I've also found it common for an agency to tell me that it has a large number of potentially responsive records, but then produce hardly anything once the review process is done.  Maybe the agency is erring on the side of being over-inclusive during the search process, but that just raises a different type of inefficiency.  Finally, on a related note, I imagine a small number of requests are rejected as invalid or imperfect because an agency simply considers it difficult, as a practical matter, to conduct a search.  I realize, though, that there may be a fine line between a complex request that requires a difficult search and an "unreasonably burdensome" request.

Here's one recommendation that wasn't in the survey: requesters and agencies should do a better job at talking to one another.  Communication allows everybody to clarify the scope of the request, to identify expectations, and to understand an agency's limitations.

K.  Considering the lack of uniform guidance on searches, a 16 percent "no responsive records" doesn't seem high to me either. That said, I think when you include that 16 percent with those instances where an agency gives you a couple of emails or documents at you just to close the request, that's where the "extremely large" would be found.

If you look at the survey responses to FOIA software, the lack of technology use for conducting searches is pretty stunning with 25 percent not using any software and 7 percent "not sure."  I'm not sure which technology is best (the survey lists the software used, like FOIAOnline), but I'd wager that solving the technological limitations within agencies would be the best way to improve FOIA for processors and requesters.