Court opinions issued July 31, 2017 to August 3, 2017

Aug. 3, 2017

Argus Leader Media v. USDA (D.S.D.) -- awarding plaintiff attorney fees and costs despite undisputed finding that agency had a reasonable basis for withholding certain food stamp program records pursuant to Exemptions 3 and 4.  See related news article. 

Aug. 2, 2017

Hall v. CIA (D.D.C.) -- deciding that: (1) CIA failed to demonstrate that its search for records pertaining to POW/MIAs from the Vietnam War era was adequate in all respects; (2) CIA properly invoked Exemption 1, but that Vaughn Index was deficient with respect to three documents; (3) CIA properly withheld records pursuant to Exemptions 3 and 5, noting that sunset provision of deliberative process privilege did not apply to this case; (3) Exemption 6 did not protect certain names of non-CIA employees because of substantial public interest in POW/MIA matters.    

Eakin v. DOD (W.D. Tex.) -- concluding that request for electronic files related to missing and unidentified veterans from World War II was not unreasonably burdensome.  In reaching its decision, the court noted that it could think of "few other government programs more solemn and worthy of public scrutiny than those tasked with ensuring that Americans who gave the last full measure of devotion in service to their nation are identified, returned home to their families or communities, and buried with honors."  Due to the volume of material, the court permitted DOD to make semi-annual productions over next four years.

July 31, 2017

Rios v. United States (D.D.C.) -- ruling that plaintiff properly certified his identity to Drug Enforcement Administration with respect to request concerning himself, and that DEA had waived its exhaustion of remedies defense regarding plaintiff's request concerning a third party.

Summaries of all opinions issued since April 2015 available here.  

FOIA News: Judge grants Argus Leader Media attorney fees in FOIA lawsuit

Judge grants Argus Leader Media attorney fees in FOIA lawsuit

By Jonathan Ellis, Argus Leader, August, 4, 2017

A federal judge has awarded Argus Leader Media nearly $70,000 in attorney fees after finding the newspaper “substantially prevailed” in a lawsuit against the United States Department of Agriculture.

The award comes after Argus Leader Media won a Freedom of Information Act lawsuit against the department last year. The newspaper sued the department in 2011 after the department refused to turn over five years of sales data for every business in the country that participates in the Supplemental Nutrition Assistance Program or SNAP, formerly known as food stamps.

Following the victory, the Food Marketing Institute intervened in the case, appealing the decision to the Eighth Circuit Court of Appeals. The appeal is pending.

Read more here.

FOIA News: FBI Loses FOIA Suit Over Program To Fire Gay Employees

FBI Loses FOIA Suit Over Program To Fire Gay Employees

By Vin Gurrieri, Law360, July 31, 2017

The FBI didn’t adequately search its records in response to a Freedom of Information Act request made by a civil rights group that sought information about a decades-long program that began in the 1950s under then-FBI Director J. Edgar Hoover to purportedly purge the agency of gays and lesbians, a Washington, D.C., federal judge ruled Friday.

Read more here (subscription). 

FOIA News: NCPC requesting comments on proposed FOIA regulations

The National Capital Planning Commission published a proposed rule to implement changes to the agency's FOIA regulations in today's issue of the Federal Register.  These changes are required to comply with the FOIA Improvement Act of 2016 and otherwise update the agency's FOIA procedures.  Public comments are due on or before August 31, 2017.

FOIA News: Judge rejects proposed FBI production timeline

Judge balks at FBI's 17-year timeline for FOIA request

Josh Gerstein, Politico, July 29, 2017

Getting answers to Freedom of Information Act requests is often a protracted and tiring process, but how long a wait is too long?

One federal judge just came up with an answer: 17 years.

U.S. District Judge Gladys Kessler bluntly rejected the Federal Bureau of Investigation’s proposal that documentary filmmaker Nina Seavey wait until the year 2034 to get all the law enforcement agency’s records for a request pertaining surveillance of anti-war and civil rights activists in the 1960s and 1970s.

The request involved an unusually large amount of material — about 110,000 pages of records at the FBI and more at other agencies — but Seavey said waiting almost two decades for the complete files wasn’t viable for her.

“Literally, they were talking 17 years out. I’m 60 years old. You can’t do that math,” the George Washington University professor and documentarian told POLITICO this week. “It wasn’t going to work for me.”

Read more here.

Court opinion issued July 28, 2017

Mattachine Soc'y of Wash. v. DOJ (D.D.C.) -- finding that: (1) FBI failed to adequately search for records concerning Executive Order 10450; (2) FBI properly withheld certain information pursuant to Exemptions 3 and 7(D); and (3) FBI properly withheld certain names pursuant to Exemption 7(C), but that public interest warranted that names be replaced with uniquely identifiable alphanumeric markers and production of index.

Summaries of all opinions issued since April 2015 available here.  

Court opinions issued July 24-July 27, 2017

July 27, 2017

White v. Office of the Fed. Defender for the Middle Dist. of Fla. (S.D. Ill.) -- spontaneously dismissing lawsuit as frivolous because defendant is not a federal agency subject to FOIA.

July 26, 2017

Am. Marine v. IRS (S.D. Cal.) -- ruling that: (1) IRS failed to demonstrate that it performed reasonable search for responsive records; (2) IRS properly withheld records pursuant to Exemptions 3 (26 U.S.C. § 6103(e)(7)), 5, 7(A), and 7(D); (3) IRS failed to address whether "Risk Score" withheld under Exemption 7(E) was technique unknown to public; and (4)  judgment would be reserved as to Exemption 3 (26 U.S.C. § 6103(a)) and Exemption 6 until record was further developed.

July 25, 2017

Jackson v. GSA (E.D. Pa.) -- concluding that both GSA and Treasury performed reasonable searches for records concerning plaintiff's unsuccessful application for employment as IRS agent.

James Madison Project v. DOJ (D.D.C.) -- finding that Department of Defense performed an adequate search for certain records concerning soldier's memoir about killing Osama Bin Laden, and that agency properly withheld information pursuant to Exemption 5 (which plaintiff conceded).  

July 24, 2017

Stein v. SEC (D.D.C.) -- deciding that: (1) agency was obliged to search for certain requested records even though plaintiff once had access to them during discovery phase of litigation; (2) agency properly withheld records pursuant to Exemptions 3 (Bank Secrecy Act), 7(A), and 7(C); and (3) plaintiff failed to provide sufficient information to determine whether certain records withheld under Exemption 7(A) were also properly withheld under Exemption 5 

Gahagan v. U.S. Citizenship & Immigration Servs. (E.D. La.) -- determining that FBI properly relied on Exemption 7(E) to withhold certain information from two pages referred to it by USCIS.

Summaries of all opinions issued since April 2015 available here.  

FOIA News: Recap of Chief FOIA Officers Council meeting

Can agencies build greater trust in the FOIA process?

By Chase Gunter, FCW, July 28, 2017

With limited resources and an increasing workload, agency officials hope that technology can help automate practices to make the government more transparent.  First, however, they need to improve the practices themselves.

The process surrounding Freedom of Information Act requests has engendered frustration over both the lengthy time it takes to receive responses and the not-so-transparent aspects of the process surrounding the 50-year-old transparency law.

 At a July 27 Chief FOIA Officers Council meeting, the issues of limited resources and manpower, combined with the recent boom in the number of requests, were repeatedly recognized as challenges by both FOIA officials and requesters.

Read more here.

FOIA News: PCLOB finalizes updated FOIA regulations

The Privacy and Civil Liberties Oversight Board published a final rule implementing new FOIA regulations in today's issue of the Federal Register.  These changes are intended to conform the agency's regulations to FOIA Improvement Act of 2016.  PCLOB also updated its Sunshine Act regulations by the same final rule.  These new regulations are effective on August 28, 2017.

FOIA News: FOIA Project Reports on Rise of FOIA Lawsuits by Nonprofit Groups

Dramatic Rise in FOIA Lawsuits Filed by Nonprofit Advocacy Groups

The FOIA Project, July 26, 2017

The number of FOIA lawsuits filed by nonprofit and advocacy organizations has generally grown over the past two decades, irrespective of which political party was in office — from the George W. Bush administration, through President Obama’s eight years, and continuing during Donald Trump’s first months as president. These findings emerge from a detailed study of court records by the Transactional Records Access Clearinghouse (TRAC), a data research center at Syracuse University.

Read more here.