FOIA Advisor

Court opinion issued Jan. 2, 2019

Court Opinions (2019)Allan BlutsteinComment

Sikes v. U.S. Dep't of the Navy (S.D. Ga.) -- on remand from 11th Circuit , which had held that agency could not refuse to process plaintiff’s duplicate request, ruling that: (1) plaintiff’s claim was not precluded by res judicata, (2) agency performed adequate and good faith search for records; and (3) plaintiff substantially prevailed and would be entitled to reasonable attorney’s fees and costs.

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

FOIA News: FOIA trends for 2019

FOIA News (2019)Allan BlutsteinComment

3 Trends to Watch in Freedom of Information Act (FOIA) Requests for 2019

Keep an eye on the increased scrutiny of public officials’ and government agencies’ business conduct, slow responses to FOIA filings, and a growing awareness of privacy and cybersecurity topics.

By Jon Kerry-Tyerman, Legaltech News, Jan. 2, 2019

Want a preview of next year’s trends in Freedom of Information Act (FOIA) requests and responses? Here’s a hint: Topics in the public consciousness tend to play a big role. As 2019 approaches, keep an eye on the increased scrutiny of public officials’ and government agencies’ business conduct, slow responses to FOIA filings, and a growing awareness of privacy and cybersecurity topics when planning your department’s resources to prepare or respond to FOIA requests.

This follows the experience of 2017 and 2018, when legal news and trends bore a strong resemblance to one another. Increasingly, “all news is national,” with news out of D.C. and big corporations dominating legal headlines.

Here are three tends to look for in 2019:

Read more here.

Court opinion issued Dec. 26, 2018

Court Opinions (2018)Allan BlutsteinComment

Phillips v. DOJ (E.D. Cal.) -- ruling that plaintiff had failed to submit any new evidence warranting reconsideration of court’s earlier decision that plaintiff failed to meet statute’s six-year statute of limitations, and noting that state trial court judge’s statement about plaintiff’s federal records did not override FOIA’s statute of limitations.

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

FOIA News: Dep't of Interior to amend regs in response to FOIA burdens

FOIA News (2018)Allan Blutstein3 Comments

Due to “exponential increases in requests and litigation,” the Department of the Interior issued a proposed rule on December 28, 2018, that would revise its FOIA regulations. Among the proposed changes, the Department would be able to “impose a monthly limit for processing records in response to your request in order to treat FOIA requesters equitably by responding to a greater number of FOIA requests each month.’’ Additionally, the Department may reject a request as unreasonably described if the request requires the agency to “locate, review, redact, or arrange for inspection of a vast quantity of material.”

Comments on the proposed rule must be submitted on or before January 28, 2019.

Court opinions issued Dec. 24, 2018

Court Opinions (2018)Allan BlutsteinComment

Sierra Club v. U.S. Fish & Wildlife Serv. (9th Cir.) -- on government’s appeal, affirming in part and reversing in part district court’s decision that government improperly relied on deliberative process privilege to withhold certain records generated during EPA rulemaking process concerning cooling water intake structures. A dissenting panelist noted that the Second Circuit had recently permitted the government to withhold similar records as deliberative.

Anguiano v. U.S. Immigration & Customs Enforcement (N.D. Cal.) -- on ICE’s renewed motion for summary judgment, finding that: (1) ICE’s supplemental search for records was adequate; (2) ICE improperly relied on Exemption 7(E) to withhold portion of handbook on "The Law of Arrest, Search and Seizure for Immigration Officers"; and (3) ICE properly withheld portions of its “Enforcement and Removal Operations” training manual.

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

FOIA News: Court questions White House review of Kushner records

FOIA News (2018)Allan BlutsteinComment

Bureaucrats flagged White House on questions about Kushner. A judge says that's not normal

By Curt Devine, CNN, Dec. 20, 2018

A federal judge is questioning the White House's role in reviewing government documents related to a freedom-of-information lawsuit for records concerning President Donald Trump's son-in-law and adviser Jared Kushner.

The nonprofit watchdog organization Democracy Forward is suing agencies including US Citizenship and Immigration Services and the Department of Homeland Security for information that could indicate whether Kushner had any involvement in discussions about the extension of a program offering foreigners who invest in US businesses, including real estate, visas and a path to a US green card. The Kushner family's real estate company has used the program to court investors.

Read more here.

Court opinions issued Dec. 18, 2018

Court Opinions (2018)Allan BlutsteinComment

Elect. Privacy Inf. Ctr. v. IRS (D.C. Cir.) -- affirming district court’s decision that IRS properly withheld Donald Trump’s tax returns, but finding that proper basis for withholding was Exemption 3, in conjunction with 26 U.S.C. § 6103, rather than plaintiff’s failure to exhaust administrative remedies.

Reyes v. NARA (D.D.C.) -- awarding plaintiff $429.20 in costs and $19,939.20 in attorney’s fees (reduced from $29,450.80 due to duplicative efforts of plaintiff’s attorneys) for substantially prevailing in case concerning records of female Filipino guerrilla fighters during World War 2. Notably, the court held that its consent order memorializing the parties’ mutually agreed upon production schedule was sufficient to establish plaintiff’s eligibility for fees, rejecting NARA’s argument to the contrary.

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

FOIA News: NRC to increase FOIA fees

FOIA News (2018)Allan BlutsteinComment

The Nuclear Regulatory Commission issued a direct final rule yesterday that would increase its hourly search rates, which were last changed in 2010. Specifically, searches performed by clerical staff would increase from a GS–7/step 6 salary rate to a GS–9/step 7 salary rate, and searches performed by professional staff would increase from a GG–13/step 6 salary rate to a GG–14/ step 7 salary rate.

This direct final rule is effective March 4, 2019, unless “significant adverse comments” are received by January 18, 2019.

FOIA Commentary: Top federal FOIA decisions of 2018

Commentary (2018)Allan BlutsteinComment

Federal courts issue hundreds of decisions in FOIA cases every year.  Most do not break new legal ground or attract media attention.  As 2018 draws to a close, the legal eagles of FOIA Advisor -- Allan Blutstein (AB) and Ryan Mulvey (RM) -- identify the decisions that stood out to them (in chronological order).

1. Argus Leader Media v. USDA (8th Cir. May 8, 2018) -- on appeal filed by a private intervenor following bench trial, affirming a district court decision that contested Supplemental Nutrition Assistance Program data were not protected by Exemption 4.

RM comment: The Argus Leader case has been ongoing for a number of years, and we’ve mentioned it a few times at FOIA Advisor. I think the circuit decision bears noting, if only because there’s a pending petition for writ of certiorari under the name Food Marketing Institute v. Argus Leader Media. Justice Gorsuch issued a stay, thus blocking the disclosure of any records. I understand that many court watchers expect the petition to be granted.

AB comment: The appellate court made an important point about the competitive harm prong of Exemption 4 , namely that the test is not whether the disclosure would be commercially “useful” to a competitor; rather, the disclosure must be likely to cause substantial competitive harm. In my experience, business submitters often do not appreciate this distinction. USDA was wise to bail on this case following a rare bench trial.

2. Animal Legal Def. Fund v. USDA (N.D. Cal. May 25, 2018) -- holding that FOIA’s expedited processing standard of "imminent threat to life or safety of an individual" excludes threats to animals -- in this case, a Siberian-Bengal tiger named "Tony."

AB comment: This appears be the first FOIA case to consider whether animals qualify as “individuals” under the statute, which warrants inclusion on this list despite the predictable result.

RM comment: The Ninth Circuit also dealt with the question of animals and statutory interpretation earlier this year in Naruto v. Slater, which concerned standing under the Copyright Act. That’s the famous “monkey selfie” case. Obviously, statutory standing isn’t really related to the expedited processing standard. But it’s always entertaining to read these sorts of opinions.

3. Morley v. CIA (D.C. Cir. July 9, 2018) -- 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 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 too much deference to the lower court, misapplied the relevant test for determining fee awards, and permitted the CIA to evade its FOIA responsibilities. 

AB comment: The majority claimed that it followed the Circuit’s familiar four-factor test for analyzing fee awards, but it expressly criticized the first three factors as being inconsistent with the statute. If the Supreme Court takes up the issue, we know how Justice Kavanaugh will rule: he was in the majority.

RM comment: I’m sympathetic to Judge Henderson’s dissent, which fairly criticized the majority’s application of the four-factor test for fee awards. It’s also amazing that, after fifteen years of litigation, of which eight concerned attorney’s fees, and multiple remands from the circuit court, the requester should go away empty-handed.

4. Judicial Watch v. U.S. Dep’t of Homeland Sec. (D.C. Cir. July 17, 2018) -- in a 2-1 decision, reversing the district court’s decision that plaintiff’s complaint failed to adequately allege a “policy or practice” claim against the Secret Service based on a history of delayed responses.

RM comment: This was an interesting decision, especially for those of us who follow the “policy or practice” case law. It is generally accepted that Payne-type claims cannot be predicated on delay alone. Judicial Watch rather ingeniously set up its fact pattern by keeping tracking of multiple requests (and lawsuits) concerning the same categories of records, and arguing that the Secret Service prioritized its processing based on an expectation that Judicial Watch would end up litigating anyway. Regardless of the merits of the underlying claim, I think this case will inspire other creative FOIA requesters to set-up strategic litigation in similar fashion.

AB comment: Interesting indeed. I cannot remember another recent FOIA decision in which the majority and dissent were so apart in their views on the fundamentals of the statute. I also was surprised -- but not disappointed -- that Judge Srinivasan, who was on President Obama’s shortlist to replace Antonin Scalia on the Supreme Court, wrote a dissent that one might have expected from Scalia himself.

5. Rosenberg v. DOD (D.D.C. Sept. 27, 2018) -- ruling that agency’s Exemption 5 withholdings were improper because statute’s “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].’”

AB comment: The Department of Justice maintains that the foreseeable harm language enacted in 2016 is inconsequential. This decision, however, seems to provide it with a little bite. I expect requesters to latch onto this decision in contesting Exemption 5 withholdings going forward.

RM comment: Last year, in Ecological Rights Foundation v. FEMA, a judge in the Northern District of California issued the first opinion that substantively addressed Section 552(a)(8)(A), and that case made our list of the top decisions of 2017. Here, Judge Mehta, has really done a deeper dive. As Allan suggests, DOJ has routinely argued that the “foreseeable harm” standard merely codifies existing practice under the Obama-Holder “presumption of openness.” The Rosenberg decision decidedly rejects that line argument. Where will courts go next? I think we need to flesh out the application of the standard under other statutory exemptions. We need clarity on whether (and when) certain exemptions can be non-discretionary for “foreseeable harm” purposes (e.g., Exemption 6). And we need to test the limits of the “categorical approach” to identifying harms that Judge Mehta accepted.

6. Kwoka v. IRS (D.D.C. Sept. 28, 2018) -- concluding that IRS could not rely on Exemption 3, in conjunction with 26 U.S.C. § 6103, or Exemption 6 to categorically withhold names of FOIA requesters and their organizational affiliations from the agency’s FOIA log.

AB comment: The IRS rigorously administers Section 6103 of the Internal Revenue Code, which prohibits the disclosure of tax returns and “return information.” Thus, it is always notable when a court rejects the IRS’s use of it.

RM comment: There were a handful of Section 6103 cases this year, but I think this was the only one where the court rejected the agency’s use of Exemption 3. It seems the IRS could have avoided a loss if it had more rigorously reviewed the records at issue, particularly as concerns first-party requesters. I think there is a fair argument to be made that the identities and organizational affiliations of requesters don’t qualify as “return information.” But the court didn’t address that threshold question, and the plaintiff appeared to concede the point.

7. Judicial Watch v. U.S. Dep't of State (D.D.C. Dec. 6, 2018) -- ordering the parties “to meet and confer to plan discovery into whether [Hillary] Clinton used a private email to stymie FOIA, whether State’s attempts to settle [this] case in late 2014 and 2015 amounted to bad faith, and whether State’s subsequent searches have been adequate.” The court notably described Hillary Clinton's use of a personal email server as “one of the gravest modern offenses to government transparency." And it minced no word for the government, either: "At best, State's efforts to pass off its deficient search as legally adequate during settlement negotiations was negligence born out of incompetence . . . At worst, career employees at the State and Justice departments colluded to scuttle public scrutiny of Clinton, skirt FOIA, and hoodwink this court."

AB comment: Granting discovery to a FOIA plaintiff is unusual, but rarer still is the withering criticism that the court unloads here. A big win for Judicial Watch. Perhaps 2019 will bring an end to the saga of Hillary Clinton’s emails.

RM: comment: Judge Lamberth may have been harsh in his criticism, but he was fair. The State Department miserably handled many of the FOIA requests concerning Secretary Clinton. Hopefully, this rare grant of discovery will serve as a wake-up call to State, as well as a warning to other agencies.

8. Elec. Privacy Info. Cent. v. IRS (D.C. Cir. Dec. 18, 2018) -- affirming district court dismissal of FOIA request for President Trump’s income tax records on the basis of Exemption 3 and I.R.C. 6103.

RM comment: This case bears mention, in my mind, for two reasons. First, the media have discussed it quite a bit, and everyone loves to consider the mandatory release of President Trump’s tax records. Second, it is a clear rejection of a series of arguments about various subsections of 6103 that were dead on arrival. With respect to administrative exhaustion, however, I appreciate the circuit’s criticism of the IRS using its FOIA regulations to try and shift the burden of demonstrating that records are subject to disclosure onto the requester.

AB comment: When plaintiff filed this lawsuit, it brazenly claimed that there “has never been a more compelling FOIA request presented to the IRS.” If “more” had been “less,” I would have agreed. The agency deserved to be assailed for its overreach on the administrative exhaustion issue. That error should not be enough, however, to warrant an award of attorney’s fee and costs should plaintiff have the temerity to request them.