FOIA Advisor

Court Opinions (2019)

Court opinions issued Mar. 27, 2019

Court Opinions (2019)Allan BlutsteinComment

Seife v. FDA (S.D.N.Y.) -- reserving judgment on most Exemption 4 withholdings pending Supreme Court’s decision in Food Market Inst. v. Argus Leader, but ordering agency to release information already in public domain.

Ctr. for Biological Diversity v. EPA (D.D.C.) -- determining that EPA performed reasonable search for records pertaining to its assessment of a new pesticide and that it properly withheld records pursuant to attorney-client and deliberative process privileges, except with respect to certain factual information contained in PowerPoint slides.

Ctr. for Biological Diversity v. EPA (D.D.C.) -- ruling that EPA properly relied on deliberative process privilege to withhold records pertaining to agency’s revisions to water quality criteria for the heavy metal cadmium. In reaching its decision, the court found that EPA’s consultations with its outside contractor did not undermine agency’s Exemption 5 withholdings and that factual material was protected from disclosure because it was deliberatively culled from larger body of information.

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

Court opinions issued Mar. 25, 2019

Court Opinions (2019)Allan BlutsteinComment

Am. Oversight v. DOJ (D.D.C.) -- determining that plaintiff was eligible and entitled to award of fees in connection with requests concerning Attorney General Jeff Sessions and White House Chief of Staff Reince Preibus, but reducing requested award by one-third because of plaintiff’s overstaffing and inefficiencies in case that required no substantive briefing. Of note, the court ruled that plaintiff “substantially prevailed” by virtue of the issuance of judicial orders establishing document production schedules.

Crisman v. DOJ (D.D.C.) -- finding that properly redacted portions of documents pursuant to deliberative process privilege, but only after FBI had supplementally released information from those documents upon applying reasonable foreseeable harm standard set forth in FOIA Improvement Act of 2016.

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

Court opinions issued Mar. 21, 2019

Court Opinions (2019)Allan BlutsteinComment

Sikes v. U.S. Dep't of the Navy (S.D. Ga.) -- denying award of attorney’s fees to plaintiff who substantially prevailed before Eleventh Circuit, because public benefit of obtaining duplicate documents was “very limited” and agency’s actions were not unreasonable.

Judge Rotenberng Educ. Ctrv. v. FDA (D.D.C.) -- ruling that: (1) agency improperly withheld information as “non-responsive” by reclassifying documents as distinct records midway through litigation; (2) plaintiff conceded agency’s attorney-client privilege claims by failing to reply to agency’s counter-arguments; (3) agency’s Vaughn Index inadequately described certain deliberative process privilege withholdings, e.g., by failing to identify decision-making authority of authors and recipients of agency communications, but agency properly withheld draft documents; (4) agency failed to properly identify privacy and public interests of third parties whose identities were withheld pursuant to Exemption 6.

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

Court opinions issued Mar. 15, 2019

Court Opinions (2019)Allan BlutsteinComment

People for the Ethical Treatment of Animals v. USDA (D.C. Cir.) -- (1) reversing district court’s decision that plaintiff had failed to challenge agency’s redactions on records re-posted to its website and remanding for adjudication on merits; (2) affirming district court’s mootness dismissal as to research reports, but remanding for further agency clarification as to agency’s plans to posting inspection reports and lists of entities licensed under Animal Welfare Act.

Highland Capital Mgmt. v. IRS (N.D. Tex.) -- determining that: (1) IRS performed adequate search for records concerning Chief Counsel’s memorandum about agency’s audit of plaintiff; (2) 26 U.S.C. § 6110 was exclusive method for obtaining certain records sought by plaintiff; (3) IRS properly withheld records pursuant to Exemption 3, in conjunction with 26 U.S.C. § 6103(a), as well as Exemption 7(A) and (4) IRS failed to provide sufficient information with respect to its Exemption 5 withholdings under the deliberative process and attorney-client privileges.

Campaign Legal Ctr. v. DOJ (D.D.C.) -- concluding that DOJ improperly relied on Exemption 6 to withhold names of individuals who were carbon copied on email that reached the Attorney General regarding formation of Presidential Advisory Commission on Election Integrity.

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

Court opinions issued Mar. 13, 2019

Court Opinions (2019)Allan BlutsteinComment

Judicial Watch v. U.S. Dep't of State (D.D.C.) -- holding that agency properly relied on Exemptions 1 and 3 in refusing to confirm or deny the existence of communications between Samantha Power, former United States Ambassador to the United Nations, and U.S. intelligence agencies regarding Russian interference in the 2016 election.

Pinnicchia v. U.S. Dep't of Veterans Affairs (D. Conn.) -- concluding that agency properly relied on Exemptions 6 and 7(C) to withhold name and identifying information of individual who falsely accused plaintiff of misconduct.

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

Court opinions issued Mar. 11, 2019

Court Opinions (2019)Allan BlutsteinComment

Judicial Watch v. DOJ (D.D.C.) -- concluding that FBI failed to conduct adequate search for records concerning Peter Strzok’s assignment to and from Special Counsel Mueller’s investigation, noting that FBI neglected to use reasonable search terms or to search records of senior staff.

Buzzfeed v. DOJ (S.D.N.Y.) -- ruling that Exemptions 6 and 7(C) did not protect identities of U.S. Attorney and Supervisory AUSA who openly engaged in improper relationship that impacted operations of entire office, but did protect identity of third party connected with separate, unsubstantiated allegation of U.S. Attorney’s misconduct.

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

Court opinions issued Mar. 8, 2019

Court Opinions (2019)Allan BlutsteinComment

Am. Small Bus. League v. DOD (N.D. Cal., 2019) -- ruling that: (1) DOD performed reasonable search for contracting records and communications between government and contractor in earlier FOIA litigation; (2) agency improperly relied on Exemption 3 (Procurement Integrity Act ) to withhold subcontracting performance and compliance records relating to contracts that were already awarded; (3) neither party established absence of material facts regarding applicability of Exemption 4 to subcontracting plans; (4) DOD release all communications that were not legitimately made pursuant to a joint defense agreement (unless protected by another FOIA exemption); and (5) agency properly withheld third-party information pursuant to Exemption 6, to which plaintiff did not object.

Niro v. IRS (D. Mass.) -- determining that agency performed adequate search for audit records concerning plaintiff’s tax returns and that it properly withheld records pursuant to Exemptions 3, 7(C), and 7(E).

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

FOIA News: Sunshine Week is upon us

Court Opinions (2019)Allan BlutsteinComment

Sunshine Week Puts Spotlight on Accessing Government Information

Sunday marks the start of Sunshine Week, an effort to highlight the role of freedom of information at all levels of the U.S. government.

The week brings together a range of groups including media outlets, government officials, nonprofit organizations, schools, and libraries in an effort to promote and explain the importance of open government and how individuals and groups can access government data.

Kevin Goldberg, the legal counsel for the American Society of News Editors — the group that organizes Sunshine Week along with Reporters Committee for Freedom of the Press — told VOA that one of the main goals for the week is to educate people on what it means to have an open government and why that is important.

Read more here.