Court opinion issued Sept. 10, 2018

Am. Ctr. for Law & Justice v. U.S. Dep't of State (D.D.C.) -- finding that: (1) agency properly relied on deliberative process privilege to withhold portions of 14 of 16 emails pertaining to video of 2013 briefing about Iran that agency altered; (2) agency properly redacted two documents pursuant to attorney-client privilege; and (3) agency did not justify withholding one email pursuant to presidential communications privilege.

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

FOIA News: Recap of FOIA Advisory Committee meeting

FOIA Advisory Committee Sets Its 2018-2020 Agenda

OGIS Blog, Sept. 12, 2018

The third term of the FOIA Advisory Committee met for the first time on September 6, 2018, at the National Archives in Washington, DC. Archivist of the United States David S. Ferriero and FOIA Advisory Committee Chairperson Alina M. Semo welcomed the Committee members, who introduced themselves and shared why they joined the Committee.  The Committee’s members, all experts in FOIA, come from both inside and outside the government.

Read more here.

FOIA News: D.C. Cir. hearing on Trump’s tax returns

Donald Trump's Tax Returns Get Their Day in the DC Circuit

Well, not the returns themselves. Because Trump hasn't released them. But there is a public-records case, set for argument Thursday in the D.C. Circuit, that seeks to force the IRS to disclose the records.

By Mike Scarcella, Nat’l L.J., Sept. 12, 2018

Donald Trump proclaimed for months on the campaign trail that he could not release his tax returns because they were being audited by the IRS. He’d let everyone see them, he vowed, after the audit. “Absolutely,” he said at one of the presidential debates.

Those secret tax returns—they still have not been released—are the centerpiece of a case being argued Thursday in a Washington, D.C., federal appeals court. A panel of judges will decide whether the Internal Revenue Service can be forced to publicly release Trump’s tax returns through the federal Freedom of Information Act.

Read more here (free subscription required).

FOIA News: FDA Looks to Make FOIA Process Easier

FDA Looks to Make FOIA Process Easier

By Zachary Brennan, Regulatory Focus, Sept. 12, 2018

The US Food and Drug Administration (FDA) on Wednesday proposed a new rulemaking that would ease the process by which the public can use the Freedom of Information Act (FOIA) to request certain non-public information.

In addition to easing the process by which materials can be requested, the proposed rule will require FDA to establish procedures for identifying records of general interest or use to the public that are appropriate for public disclosure, and for posting such records in a publicly accessible electronic format.

Records requested three or more times under FOIA also would be made public, according to the proposed rule.

Federal Register

Read more here.

FOIA News: CFPB introduces revised FOIA regulations

The Consumer Financial Protection Bureau published a final rule implementing revised FOIA regulations in today’s issue of the Federal Register. In addition to amending its regulations in light of the FOIA Improvement Act of 2016, the agency made other changes to “streamline” its FOIA processes, among other things. The CFPB made some changes as a result of the eight comments it received in response to its August 24, 2016 notice of proposed rulemaking. The new regulations are effective October 12, 2018.

FOIA News: Blumenthal considers FOIA lawsuit for Kavanaugh docs

Blumenthal says he’s ready to sue for Kavanaugh documents

By Ana Radelat & Julia Werth, CT Mirror, Sept. 11, 2018

Washington –Sen. Richard Blumenthal on Tuesday said he will spearhead an effort to sue for documents relating to Judge Brett Kavanaugh’s tenure in the White House.

While Kavanaugh’s  four-day confirmation hearing before the Senate Judiciary Committee ended last week, Blumenthal’s quest for documents pertaining to Kavanaugh’s political career has not. Kavanaugh is President Donald Trump’s choice to fill the seat of retiring Supreme Court Justice Anthony Kennedy.

“We are going to be going to court sometime this week to compel compliance with our FOIA request,” Blumenthal said at a press conference in Hartford. “I will be leading that effort in filing legal action later this week.”

Read more here.

Court opinions issued Sept. 6-7, 2018

Sept. 7, 2018

James Madison Proj. v. DOJ (D.D.C.) -- concluding that government properly invoked Exemption 7(A) in refusing to confirm or deny existence of records indicating whether President Trump is or was ever target of or material witness to any investigation, and that public statements by President Trump and DOJ did not invalidate government's Glomar response. 

King & Spalding v. HHS (D.D.C.) -- finding that: (1) Executive Office for United States Attorneys did not perform adequate search for records pertaining to investigation of plaintiff's client (Abiomed, a medical device company), because agency's declaration did not identify terms used to search three of four email files; (2) EOUSA failed to demonstrate that material provided to government about Abiomed by unidentified individual or entity was protected by Exemption 7(D); and (3) EOUSA properly relied on Exemptions 6 and 7(C) to withhold name of counsel who had transmitted material to government on behalf of unidentified individual or entity, but name of counsel's law firm was not protected from disclosure.

Am. Ctr. for Law & Justice v. DOJ (D.D.C.) -- ruling that: (1) plaintiff waived its right to challenge adequacy of DOJ's search for records pertaining to June 2016 airplane meeting between then-Attorney General Loretta Lynch and former President Clinton, because plaintiff failed to raise search issue in joint status report; (2) DOJ properly relied on deliberative process privilege to redact ten of twelve documents consisting of discussions and talking points about how to handle press inquiries about airplane meeting.

Sept. 6, 2018

Montgomery v. IRS (D.D.C.) -- finding that: (1) IRS properly invoked Exemption 7(D) in refusing to confirm or deny the existence of records pertaining to whistleblower involved in investigation of plaintiffs, despite agency's error in not raising Glomar response during administrative stage; (2) IRS did not perform reasonable search for other records pertaining to agency's investigation of plaintiffs. 

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

FOIA News: FOIA Advisory Committee meets today

The first meeting of the Freedom of Information Act (FOIA) Advisory Committee’s 2018-2020 term will take place today from 10:00 a.m. to 1:00 p.m.  A livestream is available here.

[N.B.  For the first time in its history, the Committee's ten "government" members are not all federal employees.  See membership list here.]

Court opinion issued Sept. 4, 2018

Frank LLP v. CFPB (D.D.C.) -- holding that CFPB properly relied on Exemption 7(E) to redact two investigational hearing transcripts generated in connection with enforcement action.  

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

FOIA News: FOIAonline Glitch Revealed Personal Information, Including Social Security Numbers

Exclusive: Government transparency site revealed Social Security numbers, other personal info

By Tal Kopan, CNN, Sept. 3, 2018

A federal government transparency website made public dozens, if not hundreds, of Social Security numbers and other personal information in a design error during a system upgrade.

The error, on a Freedom of Information Act request portal, was fixed after CNN alerted the government to the situation. For weeks prior, however, individuals' sensitive personal information was available on the public-facing database unbeknownst to them or the government.

After a tip from a source who had noticed the glitch, with two quick searches, CNN discovered that the government had published at least 80 full or partial Social Security numbers. There were other instances of sensitive personal information, including dates of birth, immigrant identification numbers, addresses and contact details.

Read more here.