Court opinions issued Sept. 24, 2018

Lamb v. Millennium Challenge Corp. (D.D.C.) -- deciding that: (1) MCC and State Department performed adequate searches for records concerning plaintiff’s background investigation; (2) State Department properly relied on Exemption 6 to withhold third party’s social security number; (3) Department of Defense properly withheld third-party records pursuant to Exemptions 6 and 7(C), but it did not provide enough information to permit evaluation of agency's use of Exemption 7(D); (4) although evidence showed that MCC had delivered responsive records to plaintiff, agency would be directed to provide another copy to plaintiff “out of an abundance of caution and to promote judicial economy.”

Aguiar v. DEA (D.D.C.) -- on remand from D.C. Circuit, concluding that: (1) agency demonstrated that it performed reasonable search for field office records, but that it failed to pursue potential lead to missing documents; (2) agency demonstrated that GPS mapping software used during investigation of plaintiff was not an agency record; and (3) agency was not required to create map images that plaintiff was unable to access from prison.

Middlebrook v. DOJ (D.D.C.) -- finding that Executive Office for United States performed reasonable search for one document from plaintiff’s criminal case file.

Khine v. DHS (D.D.C.) -- ruling that: (1) plaintiff had standing to litigate whether “DHS has a policy of sending ‘computer-generated,’ ‘template’ letters in response to FOIA requests from asylum applicants seeking disclosure of their assessments”; (2) agency’s response letter was sufficiently detailed to trigger plaintiff’s requirement to file administrative appeal before filing lawsuit.

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

FOIA News: New York Times Sues FCC for Allegedly Hiding Net Neutrality Comment Records

NYT sues FCC, says it hid evidence of Russia meddling in net neutrality repeal

By Jon Brodkin, Ars Technia, Sept. 21, 2018

The New York Times has sued the Federal Communications Commission over the agency's refusal to release records that the Times believes might shed light on Russian interference in the net neutrality repeal proceeding.

The Times made a Freedom of Information Act (FoIA) request in June 2017 for FCC server logs related to the system for accepting public comments on FCC Chairman Ajit Pai's repeal of net neutrality rules. The FCC refused to provide the records, telling the Times that doing so would jeopardize the privacy of commenters and the effectiveness of the agency's IT security practices and that fulfilling the records request would be overly burdensome.

Read more here.

Court opinion issued Sept. 23, 2018

King v. DOJ (D.D.C.) -- concluding that Executive Office for United States Attorneys failed to adequately describe its search for records pertaining to plaintiff’s criminal case and failed to provide court with sufficient information to determine whether agency’s withholdings were proper.

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

Court opinion issued Sept. 21, 2018

Crockett v. Dep't of Veteran Affairs (W.D. Va. ) -- denying plaintiff’s motion for attorney’s fees and costs because he failed to show that lawsuit was “reasonably necessary and substantially caused the records to be released.”

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

Court opinion issued Sept. 20, 2018

Bernegger v. Exec. Office for U.S. Attorneys (D.D.C.) -- determining that: (1) EOUSA performed reasonable search for communications of prosecutors involved in plaintiff’s criminal case; (2) EOUSA properly relied on Exemptions 6 and 7(C) to withhold records about third parties, but that additional briefing was necessary with respect to one email exchanged between agency and federal trial court; and (3) EOUSA justified its withholdings under deliberative process privilege, except for one email exchanged between agency and trial court that required in camera review.

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

FOIA News: TIGTA finds that IRS properly processed most FOIA requests

TIGTA Finds FOIA Info Properly Withheld In Most IRS Cases

By Elise Hansen, Law360, Sept. 21, 2018

The Internal Revenue Service was usually correct when it denied Freedom of Information Act requests, an agency watchdog said in an audit that examined 75 partial or complete denials from 2017.

Read more here (free trial subscription available)

Copy of FOIA audit here.

Court opinions issued Sept. 19, 2018

Clervrain v. United States (D. Kan.) -- finding that: (1) Federal Bureau of Prisons properly aggregated plaintiff’s three requests because they sought similar records and were submitted by plaintiff on same day; (2) plaintiff failed to appeal agency’s denial of his fee waiver request and therefore court could not consider it.

Linder v. EOUSA (D.D.C.) -- dismissing case as moot because agency provided plaintiff with all records to which he was entitled for free, as plaintiff expressly requested.

Climate Investigations Ctr. v. Dep’t of Energy (D.D.C.) — concluding that: (1) agency performed reasonable search for records concerning clean-coal technology at Mississippi power plant; (2) agency properly withheld records pursuant to Exemption 4 based on impairment and competitive harm theories; (3) agency properly withheld certain records pursuant to attorney-client privilege, but could not rely on privilege to withhold agency communications that included private company’s counsel; and (4) agency properly relied on deliberative process privilege to withhold disputed records originating from agency headquarters, but did not provide sufficient evidence to permit court to evaluate propriety of withholdings made by agency’s National Energy Technology Laboratory; (5) names of third parties had not been previously disclosed publicly, as court initially found, but agency did not properly perform balancing test of private and public interests required by Exemption 6.

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

FOIA News: Chief FOIA Officers Council to meet Oct. 4

Register to Attend the October 4 Chief FOIA Officers Council Meeting

OGIS Blog, Sept. 19, 2018

The Chief FOIA Officers Council will meet on October 4, 2018, at 10 a.m. in the William G. McGowan Theater, and this meeting is open to the public. If you want to attend in person, please register using Eventbrite. If you cannot attend in person, feel free to join us via livestream.

Read more here.

Court opinions issued Sept. 18, 2018

Ctr. for Pub. Integrity v. FEC (D.D.C.) -- finding that agency properly relied on deliberative process privilege to withhold records pertaining to “@altFEC” Twitter account, as well as communications from Executive Office of President to certain senior FEC employees.

Crisman v. DOJ (D.D.C.) -- ruling that: (1) FBI performed adequate search for records pertaining to plaintiff, but failed to justify use of deliberative process privilege to withhold records; (2) FRB was not required to conduct additional search based on new information provided by plaintiff almost three years after FRB completed its initial search'; and (3) plaintiff’s request to DHS would require burdensome search, but denying summary judgment to government because DHS failed to propose ways to narrow request.

Northrup Grumman v. NASA (D.D.C.) -- in reverse-FOIA lawsuit, concluding that Exemption 4 protected proposed “wrap rates” from a NASA contract in effect from 2002 to 2009 because disclosure would likely cause substantial competitive harm.

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

Q&A: Crimes and misdemeanors

Q. I am aware of the attorney-client privilege and the crime-fraud exception with regard to attorneys for private parties, but does it apply in the case of attorneys with the government? Put simply, can government employees use government attorneys to further known fraud and illegal activities, and are those communications covered under the attorney-client privilege or can the privilege be pierced?

A. I am not aware of a FOIA case in which the court has actually overruled an agency’s withholding based on the crime-fraud exception, but district courts appear to be willing to consider its applicability. In 2014, for example, the Southern District of New York ultimately rejected that the exception applied to disputed documents, but stated that it was “skeptical of the government's contention that the crime-fraud exception has no applicability in the FOIA context."  Nat'l Immigration Project of Nat'l Lawyers Guild v. DHS, No. 11-3235, 2014 WL 6850977 (S.D.N.Y. Dec. 3, 2014). The court reasoned that "it is utterly implausible to suppose that Congress intended FOIA Exemption 5 to shield government documents when they were created for the purpose of furthering a crime or a fraud." 

Additionally, in 2015. the Eastern District of Pennsylvania evaluated whether records withheld in FOIA case under the attorney-client privilege fell within the crime-fraud exception (which the court stated was a “well-known” exception), but it concluded upon review of the disputed records that there was no evidence of crime or fraud. Pellegrino v. TSA No. 09-5505 (E.D. Pa. May 6, 2015). More recently, however, the Southern District of New York noted that it was “unclear whether a court construing FOIA could properly order disclosure based on the applicability of [the crime-fraud] exception.” Sorin v. U.S. DOJ, 280 F. Supp. 3d 550 (S.D.N.Y 2017).