FOIA News: OGIS releases agenda for Chief FOIA Officer Council meeting

The Office of Government Information Services has published the agenda for the upcoming meeting of the Chief FOIA Officers Council on July 19, 2018, at 10 a.m.   The meeting is open to the public.  Register here to attend in person.  A livestream is available here. 

Court opinions issued July 10-11, 2018

July 11, 2018

Kuntz v. U.S Dep't of Justice (D. N.D.) -- in first published FOIA opinion from North Dakota district in more than 14 years, ruling that FBI's full disclosure of memorandum with North Dakota Attorney General rendered case moot. 

July 10, 2018

Ctr. for Investigative Reporting v. DOJ (N.D. Cal.) -- finding that: (1) Bureau of Alcohol, Tobacco, Firearms, and Explosives failed to perform reasonable search for certain firearms tracing records; (2) ATF was not required to produce new documents to satisfy plaintiff's request; and (3) ATF properly withheld non-statistical aggregate data from trace database pursuant to Exemption 3.  

Elliott v. USDA (D. Md.) -- dismissing case after determining that government never received plaintiff-inmate's FOIA request concerning government's jurisdiction over certain property. 

Summaries of all published opinions issued since April 2015 available here. 

FOIA News: ICYMI, lawsuit seeks access to Kavanaugh docs

Trump Administration Sued By Watchdog Group For Failing To Produce Thousands Of Brett Kavanaugh Documents

Watchdog group Fix the Court alleges the Trump administration is withholding thousands of Kavanaugh documents against federal statutes.

By Mohit Priyadarshi, Inquisitr, July 12, 2018

As Donald Trump makes his first ever official visit to the UK as president, his administration is being sued by a watchdog group for failing to produce thousands of documents about recently announced Supreme Court nominee, Brett Kavanaugh.

Read more here.

FOIA News: Kavanaugh's federal FOIA cases

U.S. Supreme Court nominee Brett Kavanaugh has participated in twenty-four federal Freedom of Information Act cases during his twelve years on the U.S. Court of Appeals for the District of Columbia Circuit.   

Morley v. CIA, No. 17-5114 (D.C. Cir. 2018)

Reporters Comm. for Freedom Press v. FBI, 877 F.3d 399 (D.C. Cir. 2017) 

Envtl. Integrity Project v. EPA, 864 F.3d 648 (D.C. Cir. 2017)

Sack v. DOD, 823 F.3d 687 (D.C. Cir. 2016)

Abtew v. DHS, 808 F.3d 895 (D.C. Cir. 2015)

Chiquita Brands Int'l. v. SEC, 805 F.3d 289 (D.C. Cir. 2015)

Am. Civil Liberties Union v. DOJ, 750 F.3d 927 (D.C. Cir. 2014)

Cause of Action v. NARA, 753 F.3d 210 (D.C. Cir. 2014)

Nat'l Sec. Archive v. CIA, 752 F.3d 460 (D.C. Cir. 2014)

Am. Civil Liberties Union v. DOJ (D.C. Cir. 2014)

Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int'l Boundary, 740 F.3d 195 (D.C. Cir. 2014)

Morley v. CIA, 719 F.3d 689 (D.C. Cir. 2013)

Ctr. for Int'l Envtl. Law v. USTR, 718 F.3d 899 (D.C. Cir. 2013)

Citizens for Responsibility & Ethics in Wash. v. FEC, 711 F.3d 180 (D.C. Cir. 2013)

Hodge v. FBI, 703 F.3d 575 (D.C. Cir. 2013)

Judicial Watch v. SSA, 701 F.3d 379 (D.C. Cir. 2012)

Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926 (D.C. Cir. 2012)

Blackwell v. FBI, 646 F.3d 37 (D.C. Cir. 2011)

Roth v. DOJ, 642 F.3d 1161 (D.C. Cir. 2011)

Brayton v. USTR, 641 F.3d 521 (D.C. Cir. 2011)

Elliott v. USDA, 596 F.3d 842 (D.C. Cir. 2010)

Larson v. Dep't of State, 565 F.3d 857 (D.C. Cir. 2009)

Juarez v. DOJ, 518 F.3d 54 (D.C. Cir. 2008)

Baker & Hostetler v. U.S. Dept. of Commerce, 473 F.3d 312 (D.C. Cir. 2006)

FOIA News: Law360 FOIA Roundup

Law360 (subscription required) posted three separate FOIA stories tonight. Excerpts and links below:

ICE, CBP Hit With FOIA Suit Over Immigrant Arrest Records

By Suzanne Monyak, Law360, July 10, 2018

The American Immigration Council asked a D.C. federal court Monday to force U.S. Customs and Border Protection and U.S. Immigration and Customs Enforcement to hand over their immigration enforcement records, claiming the agencies illegally failed to respond to the nonprofit’s Freedom of Information Act request.

The immigrant advocacy group said CBP and ICE haven't conducted an adequate search of their records in response to the council’s October request for information on the agencies’ apprehension and removal practices.

Read more here (subscription).

DOJ Must Give Harvard FOIA Docs On For-Profit College

By Matthew Santoni, Law360, July 10, 2018

A Pennsylvania federal judge ruled Monday that the U.S. Department of Justice must turn over some of the documents a Harvard Law School legal clinic had sought from a whistleblower lawsuit over a struggling Pittsburgh-based for-profit college provider’s student recruitment and loan policies.

U.S. District Judge Nora Barry Fischer granted both the DOJ and the Harvard Project on Predatory Student Lending partial summary judgment in a dispute over the clinic's Freedom of Information Act request for a trove of materials the DOJ received through a False Claims Act case...

Read more here (subscription).

IRS Denies Dragging Its Feet In Exxon Mobil FOIA Case

By Natalie Olivo, Law360, July 10, 2018

The Internal Revenue Service has hit back against Exxon Mobil’s Freedom of Information Act suit tied to the oil giant’s tax refund bid, recently telling a Texas federal court the company had no basis to accuse the agency of dragging its feet in releasing documents.

Exxon Mobil Corp. had asked the court to set a Nov. 30 deadline for the IRS to release additional records under the oil giant’s FOIA request...

Read more here (subscription).

Court opinion issued July 9, 2018

Morley v. CIA (D.C. Cir.) -- 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 -- which included U.S. Supreme Court nominee Brett Kavanaugh -- 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 the lower court too much deference, misapplied the relevant test for determining fee awards, and permitted the CIA to evade its FOIA responsibilities. 

Project on Predatory Lending of the Legal Servs. v. DOJ (W.D. Pa.) -- ruling that: (1) certain information contained on hard drive and obtained by DOJ during qui tam False Claims Act action did not qualify as "agency record" because DOJ never reviewed or relied upon it; (2) even if documents on hard drive were agency records, DOJ demonstrated that processing approximately 140 million pages would be unduly burdensome; (3) agency performed adequate search, but improperly relied on attorney-client privilege to withhold certain records; and (4) various protective orders entered in False Claims litigation did not prohibit DOJ from releasing records at issue.

Summaries of all published opinions issued since April 2015 available here. 

Court opinions issued July 5, 2018

Am. Civil Liberties Union v. DOJ (2nd Cir.) -- vacating district court's ruling that government had acknowledged certain information pertaining to drone strikes, because ruling was "unnecessary" and posed "risk of injury to important security interests of the United States."  

Powell v. IRS (D.D.C.) -- finding that agency performed reasonable search for tax records, except for plaintiff's "K-1 information as it relates to Form 706 from the William A. Powell Estate."

Summaries of all published opinions issued since April 2015 available here.   

Q&A: Is something rotten in the state of California?

Q.  I formally requested copies of a [California] city's  bank reconciliations and the City sent the following response:  "The City has located responsive documents, but they are exempt from disclosure under California Government Code 6255.” No other explanation was given.  Since these are public taxpayer funds subject to full transparency, and the potential for embezzlement could be in the millions of dollars, can you please explain why this information would be exempt?

A.   Section 6255 of the California Government Code is a “catchall” exemption that agencies may rely upon when they can show that the public interest in nondisclosure clearly outweighs the public interest in disclosure.  The following guidance from the Reporters Committee for Freedom of the Press explains Section 6255 in more detail.  The League of California Cities also has issued guidance on the Public Records Act (including Section 6255) that might be instructive.  

FOIA News: 2nd Circ. Says Drone Strike FOIA Ruling Reveals Too Much

2nd Circ. Says Drone Strike FOIA Ruling Reveals Too Much

By Daniel Wilson, Law360, July 5, 2018

A New York federal court must keep under wraps certain information about targeted drone strikes abroad, the Second Circuit said Thursday, ruling the district court did not have to decide whether the federal government had officially acknowledged a disputed fact because it had no bearing on the disclosure of documents.

Read more here (subscription). 

Copy of decision available here.

FOIA News: IRS Can't Dodge FOIA Request About Islamic Charity

IRS Can't Dodge FOIA Request About Islamic Charity

By David Hansen, Law360, July 5, 2018

A D.C. federal judge has rejected the Internal Revenue Service’s bid to toss a Freedom of Information Act request for communications about an Islamic charity, saying the IRS must look for the records and present evidence that the information is confidential.

The IRS had argued that it could not comply with the request for communications with other government agencies relating to Islamic Relief USA because the information sought was for protected “return information” for a third party, which had not authorized it.

Read more here (subscription).

Copy of decision available here.