Court opinion issued Oct. 9, 2018

Moore v. USPS (N.D.N.Y.) -- ruling that Postal Service properly invoked Exemption 6 to withhold letters referring agency employees for psychiatric evaluations.

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

FOIA News: Presidio Trust finalizes FOIA regs

The Presidio Trust issued the final version of its amended FOIA regulations today following a notice-and-comment period that concluded in April. Notably, the agency declined to extend the jurisdiction of FOIA lawsuits to courts outside of the Northern District of California. The agency’s amended regulations are effective November 15, 2018.

FOIA News: New regulations at CIGIE and Presidio Trust

The Presidio Trust published a final rule implementing revised FOIA regulations in today’s issue of the Federal Register. The revisions take into account public comments received earlier this year, as well as changes required by the OPEN Government Act of 2007 and the FOIA Improvement Act of 2016. The new regulations are effective November 15, 2018.

Last week, in the October 3, 2018 issue of the Federal Register, the Council of the Inspectors General on Integrity and Efficiency published its own interim final rule amending the agency’s FOIA regulations in line with the FOIA Improvement Act of 2016 and the Inspector General Empowerment Act of 2016. Public comments will be accepted until November 2, 2018.

FOIA News: ICYMI, Pelosi to request FBI report on Kavanaugh

Nancy Pelosi to file FOIA request for FBI report on Kavanaugh

By Gabriella Muñoz, Wash. Times, Oct. 6, 2018

House Minority Leader Rep. Nancy Pelosi announced on Saturday that she will file a Freedom of Information Act request for the FBI report on sexual assault allegations against incoming Supreme Court Justice Brett Kavanaugh.

Read more here.

FOIA News: CrossFit, Inc. Files FOIA Suit To Compel NIH Foundation, CDC Foundation Transparency On Donors

CrossFit, Inc. Files FOIA Suit To Compel NIH Foundation, CDC Foundation Transparency On Donors

Crossfit, Inc. Press Release, Oct. 4, 2018

CrossFit, Inc. announced today that it has filed a lawsuit under the Freedom of Information Act (FOIA) to compel the release of emails from the Foundation for the National Centers for Disease Control and Prevention (CDC Foundation) and the Foundation for the National Institutes of Health (NIH Foundation) concerning their legally-mandated transparency reports and the concealment of information about the donations both entities receive. The nonprofit U.S. Right to Know is also a plaintiff.

"During a health crisis, a country naturally turns to its national health institutions. And yet, instead of responding effectively to the problems of type-two diabetes, Alzheimer's disease, liver disease, opioid addiction and other chronic diseases, to name just a few, the NIH and CDC have been embroiled in numerous, high profile ethical scandals involving the very industries that have contributed to our Nation's chronic disease and opioid epidemics," the complaint asserts. "Concomitant with those scandals, the CDC Foundation and NIH Foundation have failed to comply with their legal transparency requirements, engaging in opaque partnerships with opioid manufacturers, soda companies, the NFL, and other corporations that represent major and direct conflicts of interest for any institution purported to care for the public's health."

Read more here.

Court opinion issued Oct. 4, 2018

Powell v. Social Sec. Admin. (D.D.C.) -- dismissing case because plaintiff failed to administratively appeal from response issued by SSA two days before plaintiff filed lawsuit.

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

Court opinions issued Oct. 1, 2018

Biear v. DOJ (3rd Cir.) -- reversing district court’s decision and finding that: (1) plaintiff’s request to Criminal Division for records containing his name was reasonably specific even though he did not identify the specific office where records were likely to be located; (2) plaintiff was not required to administratively appeal withholdings made by FBI after plaintiff commenced his lawsuit and district court should have maintained jurisdiction over case instead of dismissing it as moot.

Dorsey v. Exec. Office for U.S. Attorneys (D.D.C.) -- on remand from the D.C. Circuit, determining that EOUSA properly relied on Exemptions 7(C) and 7(F) in withholding certain records pertaining to plaintiff’s criminal prosecution.

Judicial Watch v. Dep’t of State (D.D.C.) -- concluding that of nineteen disputed documents pertaining to agency’s response to press inquiries about email between Hillary Clinton and Jake Sullivan, agency properly withheld nine documents and improperly withheld ten documents pursuant to deliberative process and attorney-client privileges.

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

Q&A: Snap, crackle, and sue

I am a consultant who helps retailers who are enrolled in SNAP (aka food stamps). A retailer based in New York received a USDA letter that accused the retailer of food stamp trafficking. I submitted a FOIA on the retailer’s behalf that asked for all documents, photos, etc of the case write up. After five months, USDA responded with documents but many were heavily redacted. So I did an administrative appeal within 90 days.

Last week, after 350 days, USDA denied my administrative appeal by essentially using the sample language as before Exemption 5/7 etc. Its response indicated that I can file for judicial review. I looked at other FOIA websites and they seem to state we can do this ourselves and have provided very helpful templates which I plan to use. But, I have a number of questions that these websites do not address.

Q1. Do I even need to go judicial? Can I just resubmit a new FOIA again to USDA/FNS and restart the process? 
A. You may submit a duplicate request, of course, but the agency will likely send a duplicate response or simply refer you to its earlier response. If you do not wish to file a lawsuit, you can try to ask the agency to reconsider its appeal response. Note that neither the statute nor the agency’s regulations entitle requesters to seek reconsideration of appeals, but the agency is permitted to respond to such requests as a matter of discretion. Additionally, you might wish to seek assistance from the Office of Government Information Services.

Q2. If I appeal judicially, do I have six years to file with the District Court?
A. Not quite. The applicable statute provides that "every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues." 28 U.S.C. § 2401(a). A FOIA claim "accrues" when a party has actually or constructively exhausted all administrative remedies. Thus, your claim accrued—and the six-year clock began to run—twenty business days after USDA received your administrative appeal, not on the date USDA issued its appeal response. See Reep v. DOJ (D.D.C. 2018).

Q3. During that six years, does USDA/FNS have to wait for me to see if we will file a judicial FOIA appeal or is it allowed to continue with working on the case?
A. The agency has discretion to reopen your request even if you do not file a lawsuit, but it is not required to do so.

Q4. If I decide to file a FOIA appeal judicially, this RCFP website suggests I file: (1) a short-form complaint and/or (2) a “Motion for Vaughn Index” (https://www.rcfp.org/federal-open-government-guide/federal-freedom-information-act/how-file-foia-lawsuit). Do I need to do both 1 and 2? Can they be filed at the same time? Which takes less time for the government to complete? A. In my experience, most FOIA plaintiffs do not file motions for a Vaughn Index, as you can see from the FOIA Project’s database of FOIA lawsuits. The government typically prepares a Vaughn Index in connection with its motion for summary judgment.

Q5. Can I file by mail? USDA/FNS HQ is in DC. I'm assuming Wash. DC District Court. Who do I address the envelope to?
A. The U.S. District Court for the District of Columbia has a handbook for pro se litigants that addresses these issues.

Q6. What are the fees to file a FOIA appeal? If I do 1 and 2 (from Question #4), are they separate fees for each? Who do I make the check out to?
A. The fee for filing a civil complaint in the U.S. District Court for the District of Columbia is $400. The full fee schedule and payment instructions are posted on the court’s website here.

Q7. If I do a short-form complaint, I will also include all the dated documentation USDA sent me. And I will include a prepaid postage return envelope. Anything else I'm missing?
A. I again refer you to the court’s pro se handbook for guidance, but I will point out that you at least need to complete a civil cover sheet and multiple summonses. Copies of those forms are available here. You also might wish to refer to copies of recent filings contained in the FOIA Project’s database.

Q8. If I do file a judicial appeal. For #1 and #2 (question 4), do I need to reference the FOIA tracking #? The sample FOIA complaint appeal and Motion for Vaughn Index templates from other websites don't include any FOIA tracking # in their response.

A. Your complaint will not be dismissed if you exclude the request tracking number, because that information is not a material fact. Many FOIA plaintiffs include the tracking number in their complaints, however, for the sake of completeness or to distinguish multiple requests that are being litigated.

Court opinions issued Sept. 30, 2018

Wadleton v. Dep’t of State (D.D.C.) -- awarding attorney’s fees and costs of $11,726.97 in case involving plaintiff’s employment records, but reducing award from $19,222.75 requested by plaintiff due to excessive time billed and unreasonably high hourly rates.

Intellectual Prop. Watch v. U.S. Trade Representative (S.D.N.Y.) -- ruling that agency properly relied on Exemption 3 in conjunction with 19 U.S.C. § 2155(g)(2)-(3) to withhold communications among USTR, industry trade advisory committees, and private-sector consultants about Trans Pacific Partnership trade agreement.

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

Court opinions issued Sept. 27-28, 2018

Sept. 28, 2018

Kwoka v. IRS (D.D.C.) -- holding that IRS could not rely on Exemption 3 and 6 to categorically withhold names of requesters and their organizational affiliations from agency FOIA log.

Hyatt v. USPTO (D.D.C.) -- finding after in camera review that employee’s email commenting about character of plaintiff (a frequent patent applicant) constituted “agency record” for FOIA purposes, and that agency’s reliance on Exemption 6 to withhold email failed “miserably.”

Inst. for Justice v. IRS (D.D.C.) -- concluding that: (1) IRS performed reasonable search for records from its “Asset Forfeiture Tracking and Retrieval System,” (2) agency’s production of records in Adobe format was “the only technologically-feasible route available; (3) agency properly invoked Exemption 7(A) to withhold information related to assets seized in open investigations; (4) agency properly relied on Exemption 7(C) to withhold information pertaining to individuals from whom assets were seized.

Garza v. U.S. Marshals Serv. (D.D.C.) -- finding that USMS, FBI, and DEA performed reasonable searches for records concerning plaintiff’s fugitive arrest and criminal case, and that government properly withheld records pursuant to Exemptions 6, 7(C), 7(D), 7(E), and 7(F).

Long v. ICE (D.D.C.) -- denying government’s summary judgment motion (without prejudice) in case that raises question whether plaintiff’s request requires agency to extract and compile existing data from database or, on the other hand, requires agency to create record or conduct research to answer questions.

Hodes v. U.S. Dep't of Treasury (D.D.C.) -- ruling that agency properly relied on Exemption 4 to redact commission percentages paid by IRS to debt collection contractors.

Sept. 27, 2018

Story of Stuff Project v. U.S. Forest Serv. (D.D.C.) -- finding that: (1) agency properly relied on Exemption 4 to withhold non-public records concerning Nestle Waters North America’s operations in San Bernardino National Forest, but that agency needed to clarify whether certain information was in public domain; (2) ruling on applicability of Exemption 9 to “bore holes” would be deferred until agency clarified whether information was in public domain; (3) agency properly withheld records concerning permitting and litigation pursuant to deliberative process and attorney-client privileges; and (4) agency properly relied on Exemption 6 to withhold names of individuals who authored scientific studies or worked on biological surveys.

Micolo v. DOJ (E.D.N.Y.) -- ruling that FBI performed reasonable searches for investigatory records pertaining to bank robbery for which plaintiff was convicted in 2003.

Rosenberg v. DOD (D.D.C.) -- concluding that: (1) agency performed reasonable search for communications sent by former U.S. Southern Command commander John Kelly concerning Joint Task Force Guantanamo; (2) agency properly withheld records pursuant to Exemption 1, section 1.4(g) of Executive Order 13,526, but certain withheld information had been officially acknowledged and other withholdings required supplemental declarations; (3) agency properly withheld records pursuant to Exemptions 3, 6, and 7(E), but fell short with respect to its Exemption 5 withholdings because “foreseeable harm standard” required government to “do more than perfunctorily state that disclosure of all the withheld information—regardless of category or substance—’would jeopardize the free exchange of information between senior leaders within and outside of the [DOD]’.

Michael v. DOJ (D.D.C.) -- determining that: (1) Executive Office for United States Attorneys performed adequate search for records concerning plaintiff’s criminal case; (2) ATF, to which EOUSA had referred records, properly withheld records pursuant to Exemption 3, 6, 7(C), and 7(F), and it also properly withheld records that had been sealed by federal court in North Carolina; and (3) FBI, to which ATF had referred records, properly withheld records pursuant to Exemption 6 and 7(C).

Richardson v. DOJ (D.D.C.) -- deciding that: (1) Executive Office for United States Attorneys performed reasonable search for records pertaining to plaintiff’s criminal case; (2) ATF, to which EOUSA had referred records, properly withheld records pursuant to Exemptions 6 and 7(C); and (3) plaintiff, who contested veracity of documents only, was not entitled to in camera review or discovery.

Cornucopia Inst. v. USDA (D.D.C.) -- holding that: (1) agency properly relied on deliberative process privilege to withhold records pertaining to visits to organic dairies in Texas and New Mexico in 2012, but that it improperly withheld photographs; and (2) agency properly withheld records pursuant to the trade secrets and competitive harm prongs of Exemption 4.

Wellman v. DOJ (D. Nev.) -- agreeing with D.C. Circuit that government cannot withhold portions of documents as non-responsive, but otherwise determining that government properly withheld records pertaining to internal investigation of plaintiff by Bureau of Alcohol, Tobacco, Firearms and Explosives. 

Long v. ICE (N.D.N.Y.) -- denying government’s motion for summary judgment because it failed to demonstrate that plaintiff’s request for immigration enforcement data would require agency to create new records, conduct research or answer questions.

Mathis v. DOJ (D.D.C.) -- determining that: (1) federal court in Georgia and American Red Cross were not subject to plaintiff’s FOIA requests; (2) plaintiff failed to submit proper FOIA request to IRS; (3) plaintiff failed to prove that he submitted request to Department of Defense, which was unable to locate one; (4) Securities and Exchange Commission, Social Security Commission, and FBO performed adequate searches for records concerning plaintiff and found none.

Trucept, Inc. v. IRS (S.D. Cal.) -- granting government’s renewed summary judgment motion after finding that agency performed reasonable search for plaintiff’s administrative files and properly withheld records pursuant to Exemptions 3, 6, 7(C), and 7(E).

Thompson v. Sessions (D.D.C.) -- concluding that plaintiff did not have standing to pursue “policy or practice” claim against DOJ for delaying responses to his requests about his employment, and that plaintiff was not entitled to injunctive relief.

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