FOIA News: SEC Seeks Comments on Proposed FOIA Reg Revisions

The Securities and Exchange Commission ("SEC") published a proposed rule that amends the agency's FOIA regulations in today's issue of the Federal Register.  These changes are required to conform with the FOIA Improvement Act of 2016, as well as to "clarify, update, and streamline the language of several procedural provisions."  Comments must be received by February 2, 2018.

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 Small Business League v. DOD (9th Cir.) (unpublished)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

FOIA News: Complaints persist about FOIA processing

Feds stiff-arm taxpayers’ requests for information

By Jeff Mordock, Wash. Times, Jan. 2, 2018

The federal Freedom of Information Act was supposed to give the public relatively quick and easy access to the very government documents their taxes paid for — but the system is increasingly broken, with some agencies still working on requests filed some 20 years ago.

At least five federal agencies have unfulfilled FOIA inquiries spanning more than a decade, according to a Washington Times review of two dozen of the largest agencies.

Despite recent initiatives to prevent FOIA requests from piling up, watchdogs who rely on it to hold the government accountable say nothing has changed.

Read more here.

FOIA News: Interior Dep't Sued for Travel Records

CREW Sues Interior Secretary Ryan Zinke Over Secretive Travel Records

by Colin Kalmbacher,  Law & Crime, Jan. 1, 2018

A purportedly non-partisan and nonprofit legal group has filed a lawsuit alleging the Department of the Interior violated a Freedom of Information Act (“FOIA”) request over official travel records.

Filed just before the long holiday season began on November 21 in the U.S. District Court for the District of Columbia, Citizens for Responsibility and Ethics in Washington (“CREW”) announced the lawsuit in a Twitter update posted earlier today.

Read more here.

Court opinion issued Dec. 29, 2017

Parker v. U.S. Immigration & Customs Enforcement (D.D.C.) -- on second round of briefing in dispute over emails from 1998 to 2006, finding that agency's search of one Special Agent's email remained inadequate in several respects but that agency adequately explained its email backup system.

Summaries of all opinions issued since April 2015 available here.

FOIA News: State Dep't releases Huma Abedin emails found on Weiner's computer

State Department releases emails from computer Huma Abedin shared with Anthony Weiner

By Brent D. Griffiths, Politico, Dec. 29, 2017

The State Department on Friday released 2,800 work-related emails from Huma Abedin, a top aide to Hillary Clinton, that were found by the FBI on the laptop computer of Abedin’s husband, disgraced former Rep. Anthony Weiner of New York.

Five of the messages from Abedin were marked classified, like numerous other emails that were sent or received by Clinton or her aides then deemed classified by the State Department in the process of preparing them for public release in response to Freedom of Information Act requests and lawsuits. Friday’s batch of emails is connected to a lawsuit filed by Judicial Watch, a conservative group that is seeking access to work messages Abedin sent from a personal email account.

Read more here.

FOIA News: CFPB FOIA policy declared improper

Will My Confidential CID Information Be Released by the CFPB? It’s Far from Certain

By Nicholas Gess & Charles Horn, Nat'l Review, Dec. 29, 2017

A recently published opinion of the US District Court for the District of Columbia creates some uncertainty as to the Consumer Financial Protection Bureau’s (CFPB’s) authority to protect information provided to it pursuant to a civil investigative demand (CID). In his opinion in Franks v. CFPB, Judge Christopher Cooper rejected most of the arguments made by a plaintiff’s class action firm seeking information gathered by the CFPB pursuant to a CID in an enforcement investigation. But, he granted summary judgment to the plaintiff and ordered the CFPB to review its decision to withhold certain information that had been provided “voluntarily” pursuant to the CID.

Read more here.

Court opinions issued Dec. 21 & 22, 2017

Dec. 22, 2017

Eil v. DEA (1st Cir.) -- reversing judgment of district court because it failed to consider privacy interests of decedents' family members and holding that Exemption 7(C) permitted DEA to withhold medical and death-related records introduced as exhibits by government at criminal trial of Dr. Paul Volkman. A dissenting judge agreed that the lower court employed incorrect standard, but opined that summary judgment.was precluded by a genuine factual dispute. 

Dec. 21, 2017

Gatore v. DHS (D.D.C.) -- ruling that plaintiffs were eligible for and entitled to attorney's fee and costs for substantially prevailing in case involving FOIA requests for assessments of asylum officers.  In reaching its decision, the court notably held that it was unreasonable for DHS to withhold non-responsive information from a responsive document. per recent D.C. Circuit case law.  The court also held that plaintiff failed to demonstrate the "LSI Laffey Matrix" reflects the prevailing hourly rates for attorneys better than the "USAO Matrix." 

Summaries of all opinions issued since April 2015 available here.

Court opinions issued Dec. 19 & 20, 2017

Dec. 20, 2017

Whitaker v. Dep't of Commerce (D. Vt.) -- concluding that: (1) First Responder Authority Network (FirstNet)is wholly exempt from FOIA pursuant to section 1426(d) of Title 47; (2) National Telecommunications & Information Administration and main Department of Commerce both properly declined to perform searches because they were likely to be futile; (3) Department did not have improper practice or policy of referring requests to FirstNet.  

Dec. 19, 2017

Am. Ctr. for Equitable Treatment v. OMB (D.D.C.) -- ruling that agency's search was inadequate because: (1) agency failed to sufficiently explain why it did not search for records requested prior to January 20, 2009, and  (2) agency failed to use certain commonly used terms as search terms.  

Summaries of all opinions issued since April 2015 available here.

FOIA News: DHS Sued for Record Concerning Expedited Removal Procedures

DHS Hit With FOIA Suit Over Expedited Removal Procedures

Tiffany Hu, Law360, Dec. 20, 2017

The U.S. Department of Homeland Security is being sued under the Freedom of Information Act for documents explaining its procedures and policies concerning expedited removal of people suspected of being undocumented immigrants, according to a complaint filed Tuesday in California federal court by a nonprofit investigative journalism group.

The Center for Investigative Reporting, which publishes the news site and radio program “Reveal,” accused the DHS of failing to release records it had requested pertaining to the Illegal Immigration and Immigrant Responsibility Act of 1996 . . .

Read more here (subscription required).