FOIA Advisor

Court opinions issued Jan. 30, 2019

Court Opinions (2019)Allan BlutsteinComment

Friends of the Earth v. U.S. Army Corps of Eng'rs (W.D. Wash.) -- ordering agency to release biological evaluation prepared by consultant to British Petroleum (BP) after determining that: (1) “consultant corollary” doctrine of Exemption 5 was inapplicable because: (a) documents were not agency records (presumably referring to inter- and intra-agency communications threshold); and (b) BP and its consultant were not acting on behalf of agency; (2) deliberative process privilege was inapplicable because documents were not pre-decisional; and (3) agency waived any privilege by sharing document with BP.

Linder v. Exec. Officer for U.S. Attorneys (D.D.C.) -- ruling that EOUSA properly withheld grand jury testimony pursuant to Exemption 3 in conjunction with Rule 6(e) of the Federal Rules of Criminal Procedure.

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

FOIA News: More on Interior’s proposed regs

FOIA News (2019)Allan BlutsteinComment

Public Heaps Scorn On DOI Plan To Curb Info Access

By Juan Carlos Rodriguez, Law 360, Jan. 30, 2019

The Department of the Interior's proposal to curtail its Freedom of Information Act program sparked an outpouring of more than 60,000 public comments from Republicans, Democrats, tribal representatives, environmental groups, local governments and others, most of whom skewered many of the department's suggested changes as either illegal or unethical.

Read more here (accessible with free trial subscription )

[Note: The article mentions the author’s comments, submitted on behalf of America Rising, as well as those of Ryan Mulvey and his colleague, James Valvo, on behalf of Cause of Action.]

Court opinion issued Jan. 29, 2019

Court Opinions (2019)Allan BlutsteinComment

Spataro v. DOJ (D.D.C.) -- concluding on renewed summary judgement motion that: (1) FBI conducted adequate search by virtue of recovering records concerning criminal investigation of plaintiff that had been damaged by Hurricane Sandy; (2) FBI performed proper segregability review of remediated records and justified its use of Exemption 3 and 7(D) to withhold other records.

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

FOIA News: Interior's proposed regulations drew 60k comments

FOIA News (2019)Allan BlutsteinComment

Interior Department's FOIA efficiency proposal panned as less transparent

By Gregory Wallace & Ellie Kaufman, CNN, Jan. 29, 2019

A Trump administration proposal that would limit the public's access to Interior Department records is drawing the ire of open-government and environmental groups, who are preparing to challenge it with a lawsuit.

The proposal says it is designed to address "exponential increases in requests and litigation" under the Freedom of Information Act in the Trump administration.

Critics charge that the proposal would pull a thicker veil over the department, which makes important decisions about oil drilling, mining, water use and endangered species, and manages millions of acres of public land.

Read more here.

FOIA News: D.C. Circuit’s ruling on Bin Laden raid was correct but frustrating, opines Bloomberg writer

FOIA News (2019)Allan BlutsteinComment

Obama’s Secret Rationale for the Raid on Bin Laden

Nearly eight years later, the public still knows precious little about how and why the decision was made.

By Stephen L. Carter, Bloomberg, Jan. 29, 2019

So it looks like those secret Osama bin Laden memos are going to stay secret a bit longer. These are the written opinions by lawyers at multiple U.S. intelligence agencies, drafted in 2011 at the request of President Barack Obama’s administration, on whether the U.S. had the legal right to capture or kill bin Laden at his hideout in Pakistan. The existence (but not the text) of these opinions came to light in 2015, and various groups have been chasing them ever since. Last week, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the government did not have to make them public.

Read more here.

FOIA News: More on Exemption 4 SCOTUS case

FOIA News (2019)Allan BlutsteinComment

Supreme Court Grants Cert. In Case That May Re-Define Scope of FOIA Exemption 4’s For Proprietary Business Information

By John F. Zabriskie, Nat’l L. Rev., Jan. 29, 2019

In a case of interest to auto industry companies, the U.S. Supreme Court has granted a petition for a writ of certiorari in a case that will result in the high court’s first opinion interpreting Exemption 4 to the federal Freedom of Information Act (“FOIA”)—the exemption companies use most frequently to protect sensitive business information.  This case is of major interest to businesses, including those in the auto industry, because it could yield a blockbuster ruling easing the burden on businesses seeking to keep confidential their private information in the possession of the government. 

Read more here.

Court opinion issued Jan. 25, 2019

Court Opinions (2019)Allan BlutsteinComment

Judicial Watch v. DOD (D.C. Cir.) -- affirming district court’s decision that the presidential communications privilege protected in full five memoranda that “memorialized advice to the President and his top national security advisers when the President was considering whether to order a military strike on Osama bin Laden’s compound in Pakistan.”

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

FOIA News: Dep't of Interior extends comment deadline by one day

FOIA News (2019)Allan BlutsteinComment

The Department of the Interior has extended the public comment period for its proposed regulations from January 28, 2019, to January 29, 2019, as set forth in a notice scheduled to be published in the Federal Register on January 28, 2019. The reason for the one-day extension, according to the Department, is a technical glitch that occured in mid-January on the website regulations.gov .