Court opinions issued Sept. 14, 2018

Mabie v. U.S. Marshal's Serv. (S.D. Ill.) -- ruling that city jail and city police department were not agencies subject to federal Freedom of Information Act.

Property of the People v. OMB (D.D.C.) -- holding that: (1) OMB improperly relied on deliberative process privilege to withhold factual information from OMB Director’s calendar, such as names of schedulers, names of meeting attendees, and the locations of meetings; and (2) OMB’s filings were too vague to permit court to evaluate whether disputed calendar entries were protected from disclosure solely pursuant to presidential communications privilege or in conjunction with deliberative process privilege.

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

Court opinions issued Sept. 13, 2018

Niskanen Ctr. v. U.S. Dep't of Energy (D.D.C.) -- concluding that: (1) agency failed to perform reasonable search for records concerning federal advisory committee, namely National Coal Coalition or its incorporated counterpart NCC, Inc.; and (2) agency improperly withhold certain records pursuant to Exemption 4, because they were obtained involuntarily (contrary to agency’s claim) and agency failed to show that disclosure would likely cause substantial competitive harm; and (3) further briefing was required to determine whether on document was privileged under Exemption 4.

Cause of Action Inst. v. DOJ (D.D.C.) -- deciding after in camera review that: (1) DOJ improperly relied on attorney-client and deliberative process privileges to withhold portion of email between White House and Office of Information and Privacy concerning House Committee’s directive to agencies to withhold congressional records; (2) DOJ properly relied on same privileges to withhold communications among three DOJ components and undisclosed federal agency about same subject; and (3) it was unnecessary to resolve parties’ disagreement as to whether FOIA Improvement Act of 2016 raised requirement for withholding records.

Prechdel v. FCC -- finding that: (1) agency properly relied on deliberative process privilege to withhold communications among agency staff regarding public inquiry about proposed “Restoring Internet Freedom” regulations; (2) agency improperly invoked Exemption 6 to withhold email addresses of email associated with “bulk comment” submissions; (3) .CSV files themselves also could not be protected by Exemption 6, and ordering parties to meet and confer about their availability; and (4) agency properly invoked Exemption 7(E) to withhold electronic server logs detailing all dates and times that .CSV files were submitted.

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

Court opinion issued Sept. 12, 2018

Hillier v. CIA (D.D.C.) — ruling that: (1) CIA performed adequate search for unclassified records concerning plaintiff, who believes he is under surveillance, and that agency properly refused to confirm or deny existence of classified records pursuant to Exemptions 1 and 3; (2) DHS performed adequate search for records about plaintiff, who claimed he might have been mistaken for suspected terrorist, except with respect to one system of records; and (3) Department of State performed reasonable search for records concerning plaintiff’s alleged involvement in terrorist incidents.

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

FOIA News: Recap of argument re: Trump tax returns

Lawyers Spar Over Trump Tax Return FOIA Suit at DC Circuit

At least one D.C. Circuit judge appeared skeptical of the DOJ argument that EPIC, the advocacy group seeking Trump's tax returns, hadn’t completed its Freedom of Information Act request.

By Ellis Kim, Nat’l L.J., Sept. 13, 2018

A U.S. Department of Justice lawyer told a D.C. appeals court Thursday that an advocacy group seeking President Donald Trump’s tax returns hadn’t “perfected” its open records request, but at least one judge on the panel appeared skeptical.

Attorneys for the advocacy group Electronic Privacy Information Center and the DOJ sparred before the three-judge panel on the U.S. Court of Appeals for the D.C. Circuit, as part of EPIC’s continued bid to force the IRS to hand over Trump’s tax returns. U.S. District Judge James Boasberg of the District of Columbia tossed its Freedom of Information Act lawsuit last year, a ruling Epic appealed.

Read more here.

FOIA News: FDA publishes proposed rule for revised FOIA regulations

The Food and Drug Administration published a proposed rule that would implement various revisions to its FOIA regulations in today’s issue of the Federal Register. Most of these changes are intended to bring the FDA into compliance with the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016. The agency last undertook a substantive revision of its FOIA regulations in July 2005. Public comments on today’s proposed rule will be accepted until November 13, 2018.

FOIA News: DOJ-OIP announces 2019 training dates

New FOIA Training Dates for Fiscal Year 2019

Dep’t of Justice, OIP Blog, Sept. 12, 2018

OIP today announced 15 new dates for FOIA training courses during Fiscal Year 2019.  As part of its responsibility to encourage agency compliance with the FOIA, OIP offers a number of training opportunities throughout the year for agency FOIA professionals and individuals with FOIA responsibilities.  These courses have been designed to offer training opportunities for personnel from all stages of the FOIA workforce, from new hires to the experienced FOIA professionals or FOIA managers.  As Fiscal Year 2019 quickly approaches, we are pleased to announce the new training courses and dates for this upcoming fiscal year, which are also available on OIP’s Eventbrite page (link is external).

The new courses and dates for Fiscal Year 2019 are:

         Annual FOIA Report Refresher Training
         October 9, 2018

         Freedom of Information Act Litigation Seminar
         November 1, 2018

         Introduction to the Freedom of Information Act
         December 5, 2018

         Chief FOIA Officer Report Refresher Training
         December 11, 2018

         Best Practices Workshop
         January 10, 2019

         Freedom of Information Act for Attorneys and Access Professionals
         January 15-16, 2019

         Advanced FOIA Seminar
         February 20, 2019

         Freedom of Information Act for Attorneys and Access Professionals
         April 16-17, 2019

         Continuing FOIA Education
         April 24, 2019

         Advanced FOIA Seminar
         May 14, 2019

         Introduction to the Freedom of Information Act
         May 21, 2019

         Freedom of Information Act for Attorneys and Access Professionals
         June 11-12, 2019

         FOIA Litigation Seminar
         June 25, 2019

         Freedom of Information Act for Attorneys and Access Professionals
         July 23-24, 2019

         Best Practices Workshop
         August 13, 2019     

Read more here.

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.