Court opinions issued Aug. 5, 2016

Labow v. U.S. Dep't of Justice (D.C. Cir.) -- affirming the district court's grant of summary judgment in favor of the FBI on claims under Exemption 7(D) and under the exclusion set forth in 5 U.S.C. § 552(c)(1); reversing the grant of summary judgment on challenges to FBI's withholdings under Exemption 3, specifically the Pen Register Act and Fed. R. Crim. P. 6(e) (grand jury records); vacating as moot the district court's opinion with regard to Exemption 7(A).

GMBH v. Cent. Intelligence Agency (D.D.C.) -- determining that the CIA conducted a reasonable search for records pertaining to the head of East Germany's state security service, and that the agency properly withheld certain information pursuant to Exemption 3 (The National Security Act and the CIA Act).  

Summaries of all opinions issued since April 2015 available here. 

FOIA News: Records about Gold King Mine spill to be made searchable

EPA: Released documents will be made searchable

Agency uploaded 29,000 documents in response to Gold King Mine spill

By Shane Benjamin, The Journal, Aug. 6. 2016

Thousands of emails related to the Gold King Mine spill that were posted online last week by the Environmental Protection Agency will eventually be made searchable, the agency said Thursday.

The documents were posted largely in response to multiple open records requests from media outlets across the country that are seeking more information about the Aug. 5, 2015, spill.

They generally consist of email communications involving EPA employees – pre-spill and post-spill – in addition to attachments and meeting invites, the EPA said Thursday in an email to the The Durango Herald. The oldest document is from March 2013, and the most recent is from November 2015.

The documents were uploaded as PDFs to a file-sharing site but are unsearchable without opening each of the 29,126 links. Even then, because the PDFs have been uploaded as images rather than text documents, it is difficult to perform keyword searches without using optical reading software. There’s about 20 gigabytes worth of uploads.

Read more here.

Court opinion issued Aug. 4, 2016

Myrick v. Johnson (D.D.C.) -- concluding that the Department of Homeland Security properly relied on Exemption 7(E) in refusing to confirm or deny the existence of records pertaining to a specific undercover operation.

Summaries of all opinions issued since April 2015 available here. 

FOIA News: FOIA Request helps AP reporter "take down flossing"

How an AP reporter took down flossing

By Kristen Hare, Poynter, August 5, 2016

Tell us about the process behind this story. It started with a FOIA, right?

My work started with a careful look at the research. Much of it was identified in five medical literature reviews undertaken over the past decade. I also began to wonder how floss had gained such wide acceptance, who had promoted it, and why.

I found that the federal government had been promoting floss for decades, chiefly in its Dietary Guidelines for Americans. By law, the guidelines must be based on science, so I asked staffers at the responsible agencies — the departments of Health and Human Services and Agriculture — for the documentation behind the floss recommendation. Weeks of requests failed to turn up anything. So I filed a formal FOIA request.

Six months passed. On Jan. 7, the government put out a new edition of the guidelines, as scheduled. The flossing recommendation had quietly been dropped. The next day, HHS wrote a letter to me in reply to my FOIA request. It said that no relevant records could be located and then added that floss had never been researched by the committees that review science for the guidelines.

It said that flossing had simply been taken as a "general public health recommendation." In the end, this appeared to be a rare instance where simply filing a FOIA changed government policy.

Read more here.

FOIA News: FBI releases surveillance video of Baltimore protests

FBI releases 'complete collection' of surveillance videos from Baltimore protests, unrest

By Kevin Rector, Baltimore Sun, Aug. 4, 2016

The FBI has released its "complete collection" of surveillance footage from several nights of protests and unrest after the death of Freddie Gray in Baltimore last year.

The video, released after Freedom of Information Act requests were filed by the American Civil Liberties Union and The Baltimore Sun, shows large crowds marching en masse through Baltimore's streets at certain points and breaking with a curfew in place at the time at others. At one point, it shows a large number of police squad cars milling around a small crowd of people. At another point, the streets below appear empty.

The quality of the video — hours and hours of it — varies. And as noted by the ACLU's Nathan Freed Wessler and Naomi Dwork on Thursday, "the magnification isn't enough to identify individual faces."

Read more here.

Court opinion issued August 2, 2016

N.Y. Times Co. v. U.S. Dep't of the Treasury (S.D.N.Y.) -- ruling that the Office of Foreign Assets Control properly withheld a memoranda as predecisional and deliberative under Exemption 5, but that the agency failed to show that it conducted an adequate search for the "governing legal protocol" that plaintiff had actually requested.  

Summaries of all opinions issued since April 2015 available here. 

FOIA News: Ninth Circuit agrees to rehear FDA case

9th Circuit to reconsider case over FDA records request

By Jessica Dye, Reuters, Aug. 4, 2016

A federal appeals court on Wednesday agreed to rehear en banc an appeal from an animal welfare group over its request for unredacted egg-production and safety records from the U.S. Food and Drug Administration.

The 9th U.S. Circuit Court of Appeals did not elaborate on its reasons for granting the Animal Legal Defense Fund's petition for en banc review. But the panel's original April opinion had urged the full court to take up the case in order to determine what summary-judgment standard should apply to actions involving the Freedom of Information Act.

[A copy of the order is available here]

[A copy of the April 2016 opinion is here]

Court opinions issued July 29, 2016

Am. Immigration Lawyers Ass'n v. Exec. Office for Immigration Review (D.C. Cir.) -- reversing district court's decision that the agency may categorically withhold under Exemption 6 the names of all immigration judges who are the subject of misconduct complaints; reversing the district's decision that the agency may redact information as non-responsive from a document deemed responsive to request; affirming district court's decision that records documenting the resolution of misconduct complaints need not be affirmatively disclosed under 5 U.S.C. § 552(a)(2)..

Pinson v. U.S. Dep't of Justice (D.D.C.) -- ruling that: (1) the Federal Bureau of Prisons properly relied on Exemption 7(C) to withhold third-party information from "Special Administrative Measures," memoranda, but failed to prove that Exemptions 7(E) and 7(F) applied to those records; (2) BOP properly relied on Exemptions 6 and 7(C) to withhold third-party information from memoranda concerning inmate deaths; and (3) BOP properly relied on Exemption 5 and 6 to withhold portions of memorandum describing unsuccessful nominee for BOP Director.

Summaries of all opinions issued since April 2015 available here. 

Court opinion issued July 26, 2016

Gahagan v. U.S. Citizenship & Immigration Servs. (E.D. La.) -- finding that: (1) USCIS's revised Vaughn indices were not detailed enough to prove that Exemption 5 applied to four documents; (2) USCIS discharged its FOIA obligations with respect to remaining requested records, including properly invoking Exemptions 5 and 7(E), and; (3) plaintiff did not establish that USCIS should be held in civil contempt.

Summaries of all opinions issued since April 2015 available here.  

FOIA News: DOJ loses Exemption 6 case in D.C. Circuit.

DOJ Can't Shield Names of All Immigration Judges Who Face Complaints, DC Circuit Rules

By Zoe Tillman, The National Law Journal, July 29, 2016

The U.S. Department of Justice cannot indiscriminately keep secret the names of immigration judges who are the subject of misconduct complaints, a federal appeals court in Washington ruled on Friday.

The Justice Department redacted the names of immigration judges in 16,000 pages of documents produced in response to a public records request. The U.S. Court of Appeals for the

D.C. Circuit said DOJ must go back and weigh judges' privacy interests against the public's right to the information.

"Given the variety in types of complaints and circumstances of individual immigration judges, not every judge has the same privacy interests at stake and not every complaint would equally enlighten the public about 'what their government is up to,'" Judge Sri Srinivasan wrote for the unanimous three-judge panel.

Read more here.

Copy of opinion here.