Court opinions issued Sept. 2, 2016

Fund v. U.S. Food & Drug Admin. (9th Cir.) (en banc) -- adopting a de novo standard of review for summary judgment decisions in FOIA cases and remanding the case for resolution of merits.  

• See related article from Courthouse News Service.   

Davidson v. U.S. Dep't of State (D.D.C.) -- determining that (1) agency failed to demonstrate the adequacy of its search for documents; (2) agency's Vaughn Index failed to account for all withholdings; and (3) agency properly withheld records pursuant to Exemptions 5 and 6. 

Summaries of all opinions issued since April 2015 available here.  

Q&A: Into the woods and down the dell

Q.  I own 30 acres bordered on two sides by federal forest land.  I have asked the local U.S. Forest for their access for the public to this area and they refused to give me that information.  Who and how do I file for this information?

A.  If you seek records from the U.S. Forest Service, please see its FOIA web page for instructions.  

Court opinion issued Sept. 1, 2016

McClanahan v. U.S. Dep't of Justice (D.D.C.) -- determining that: (1) the FBI performed an adequate search in response to plaintiffs' requests for records concerning themselves, and  (2) the agency properly withheld records pursuant to Exemption 1, Exemption 3 (in conjunction with the National Security Act of 1947), Exemption 5 (attorney work product privilege), and Exemption 7(E).  

Lorber v. U.S. Dep't of the Treasury (E.D.N.Y.) -- adopting in full the Magistrate's recommendation to grant agency's summary judgment motion after finding that: (1) Treasury did not waive its right to collect applicable fees in light of "unusual" and "exceptional" circumstances; (2) Plaintiff's requests for third-party emails fell outside of the Privacy Act; (3) Plaintiff, a pro se litigant, was not entitled to attorney's fees; and (4) Treasury did not acted arbitrarily or capriciously in withholding records.     

Summaries of all opinions issued since April 2015 available here.  

FOIA news: FBI releases records of Clinton interview

FBI releases Hillary Clinton email report

By Tal Kopan & Evan Perez, CNN, Sept. 2, 2016

Hillary Clinton repeatedly told the FBI she couldn't recall key details and events related to classified information procedures, according to notes the bureau released Friday of its July interview with the Democratic presidential nominee, along with a report on its investigation into her private email server.

Clinton told the FBI she "could not recall any briefing or training by State related to the retention of federal records or handling classified information," according to the bureau's notes of their interview with Clinton. The documents indicate Clinton told investigators she either does not "recall" or "remember" at least 39 times — often in response to questions about process, potential training or the content of specific emails.

Read more here.

FBI's press release and records available here.

Court opinions issued Aug. 31, 2016

Dongkuk Int'l v. U.S. Dep't of Justice (D.D.C.) -- concluding that a request for assistance made by a foreign government -- in this instance, the Republic of Korea --  under a Mutual Legal Assistance Treaty is exempt from disclosure under Exemption 3.

Intellectual Property Watch v. U.S. Trade Representative (S.D.N.Y.) -- denying in substantial part plaintiff's motion for reconsideration of court's decision that certain draft text, memoranda, and communications relating to the Trans Pacific Partnership ("TPP") were properly withheld under Exemption 1; denying both parties' motions for summary judgment on USTR's withholdings pursuant to Exemption 3 in conjunction with 19 U.S.C. § 2155(g)(2),(g)(3).

Summaries of all opinions issued since April 2015 available here.  

FOIA News: ICYMI, the DOJ's FOIA comic

FOIbles: The Justice Dept's Forgotten FOIA Comic

By The Memory Hole 2, Aug. 26, 2016

During a brief moment at the beginning of the 1980s, the Justice Department published a single-panel gag comic about the Freedom of Information Act.  FOIbles was aimed at FOIA staff within the government, so it gives us an unexpected look at the mindset of those who process FOIA requests.

FOIbles ran in the newsletter FOIA Update, put out by the Justice Department's Office of Information Policy from late 1979 to early 1999. The cartoon ran in only eight issues (the first seven, plus the ninth issue).  The OIP has posted the complete text of FOIA Update here, but all images - photos, illustrations, and cartoons - were left out.  I scanned this forgotten footnote of FOIA history from original printed copies of the newsletter.  All FOIbles are reproduced below, in the order in which they appeared.

Read more here.

FOIA News: HHS Denies FOIA Request on Carcinogen Study

HHS Denies FOIA Request on Carcinogen Study

By Jack Fitzpatrick, Morning Consult, August 31, 2016

The Department of Health and Human Services denied a conservative advocacy group’s Freedom of Information Request about communications on glyphosate, a herbicide at the center of a debate over potential carcinogens.

The Free Market Environmental Law Clinic, which is affiliated with the conservative Energy and Environment Legal Institute, requested communications documents from Gloria Jahnke, a scientist with the department’s National Institute of Environmental Health Sciences, pertaining to glyphosate. But officials rejected the request, saying that even emails in the department’s possession belong to the International Agency for Research on Cancer, a wing of the World Health Organization that Jahnke had worked with, which isn’t subject to FOIA requirements.

“IARC is the sole owner of all such materials,” the agency’s response to the FOIA request says. “IARC does not encourage participants to retain working drafts of documents after the related Monograph has been published.”

Read more here.

FOIA News: Most journalists support "release-to-one-release-to-all" policy, according to survey

Report on survey of journalists' views on "release to one, release to all" FOIA policy

By Adam Marshall, Reporters Committee for Freedom of the Press, Aug. 31, 2016

The Reporters Committee for Freedom of the Press is publishing the results of its survey of journalists on the "release to one, release to all" policy under the federal Freedom of Information Act (FOIA). More than 100 self-identified journalists responded to the survey.

Respondents to the survey were generally in favor of a “release to one, release to all” policy if it is implemented with a delay between release to the requester and release to the public. While a quarter of respondents supported the policy unconditionally, almost 60% support it only with conditions, such as a delay period.

Many journalists indicated that they believe there would be detrimental effects if others can immediately access records they receive in response to a FOIA request. In particular, if a third party is allowed to “scoop” the results of those efforts, not only do the incentives for filing FOIA requests decline, but the quality of stories might suffer.

Read more here.

Court opinion issued Aug. 29, 2016

Brown v. Perez (10th Cir.) -- reversing decision of U.S. District Court for the District of Colorado that granted summary judgment to U.S. Department of Labor, which had withheld the names and business addresses of treating physicians from certain worker compensation records pursuant to Exemptions 4 and 6.  With respect to Exemption 4, the Tenth Circuit held that the agency could not demonstrate the likelihood of substantial competitive harm by relying upon an unsworn letter from a third party that had objected to disclosure.  Regarding Exemption 6, the Circuit questioned the agency's unsupported claim that the treating physicians had any cognizable privacy interests in their business addresses.  Moreover, the Circuit rejected the agency's post hoc argument that disclosure would implicate the physicians' financial information.  Lastly, the Circuit held that the district court improperly permitted agency to withhold printouts of certain computer menu screens, because the agency had put forth no evidence as to whether those records were "readily reproducible."

Summaries of all opinions issued since April 2015 available here.    

FOIA News: Farm Credit Insurance Corp. amends FOIA regs without seeking public comment

The Farm Credit Insurance Corporation issued a final rule today that amends its FOIA regulations to reflect the changes made by the FOIA Improvement Act of 2016.  The Corporation explained that it decided not to seek public comment before issuing the rule because the "proposed amendments are required by statute, do not involve Corporation discretion, and provide additional protections to the public through the existing regulations.  Thus, notice and public procedure are impracticable, unnecessary, and contrary to the public interest."