Am. Oversight v. HHS (D.D.C.) -- deciding that:HHS and Office of Management & Budget improperly redacted as “non-responsive” portions of email chains between agencies and Congressional Republicans concerning the Affordable Care Act, and that they also improperly withheld records based upon “consultant corollary” theory to deliberative process privilege.
Summaries of all published opinions issued since April 2015 are available here.
Leopold v. CIA (D.D.C.) -- ruling that: (1) CIA properly invoked Exemptions 1 and 3 in refusing to confirm or deny existence of records related to alleged program of CIA payments to Syrian rebels; and (2) CIA performed adequate search for records pertaining to President Trump’s tweet and that it properly redacted records pursuant to Exemptions 3 and 6.
Palmarini v. IRS (E.D. Pa.) -- concluding that: (1) IRS conducted adequate search for plaintiffs’ tax audit records; (2) IRS properly withheld records pursuant to Exemptions 3 , 4, 5, 6, and 7(E), except for disk password provided by financial institution.
Bloche v. DOD (D.D.C.) -- in case concerning role of medical professionals in interrogation tactics, determining that: (1) government properly relied on deliberative process privilege to withhold all but seven documents, (2) government properly withheld Guantanamo Bay interrogation log pursuant to Exemption 1; and (3) government failed to justify use of Exemption 6 to withhold government email domain addresses, or its withholdings pursuant to Exemption 7(E).
Corley v. DOJ (D.D.C.) -- on renewed summary judgment, finding that Executive Office for U.S. Attorneys properly relied on Exemptions 3, 6 and 7(C) to withhold four documents pertaining to arrest of third-party minor.
Summaries of all published opinions issued since April 2015 are available here.
Mo. Coal. for Env't v. U.S. Army Corps of Eng'rs (D.D.C.) -- declaring that agency employed unlawful policy and practice of withholding Clean Water Act permit records pursuant to Exemption 5, but declining to issue injunction requested by plaintiff.
Summaries of all published opinions issued since April 2015 are available here.
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.
Kapende v. DHS (D.D.C.) -- ruling that agency properly withheld portions of assessment memoranda concerning plaintiffs’ asylum applications pursuant to deliberative process privilege, even though agency ultimately followed memoranda’s recommended decisions.
Summaries of all published opinions issued since April 2015 are available here.
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.
Army Backs Down on FOIA, Waives $300K Fee for PFAS Contamination Data
Envtl. Working Group Press Release, Mar. 25. 2019
Under pressure from Environmental Working Group and Capitol Hill lawmakers, the Army today agreed to waive its fee of almost $300,000 to process a public records request seeking information about fluorinated chemical contamination at military installations.
In November, EWG filed a Freedom of Information Act request for data to determine the severity of PFAS contamination of drinking water and groundwater at hundreds of bases nationwide. EWG requested a fee waiver, which the Associated Press reported is routinely given to news outlets and nonprofit groups seeking information in the public interest.
Read more here.
Q. I filed a FOIA with NOAA in March of last year and the FOIA request has yet to be fulfilled. I reached out to inquire about the delay, taking great pains to be very patient with the process. If possible, I'd like to know how to proceed in filing an official complaint.
A. If by "official complaint" you mean filing a lawsuit, the FOIA provides four options as to where that suit may be filed: (1) in the federal district in which you live; (2) in the federal district where you have your principal place of business; (3) in the federal district in which the agency records are located; or (4) in the District of Columbia. You may file a complaint with or without the assistance of an attorney. If you wish to file a lawsuit by yourself, for example in the U.S. District Court for the District of Columbia, see the following court guidance on how to proceed: https://www.dcd.uscourts.gov/pro-se-help.
Short of a lawsuit, you can request assistance from the Office of Government Information Services, aka the "FOIA Ombudsman," which is a component of the National Archives and Records Administration. Here are instructions from OGIS about how to file a request for assistance: https://www.archives.gov/ogis/mediation-program/request-assistance.
[P.S. An agency’s FOIA Public Liaison also may be a useful resource for requesters who encounter issues with their requests. In this case, the requester noted an extensive history of interactions with agency personnel, which was omitted from the original post.]
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.
FCC to Cough Up $43,000 Settlement for Refusing to Turn Over Fake Comment Records
While not admitting to doing anything wrong, the Federal Communications Commission on Wednesday settled a lawsuit for tens of thousands of dollars after unlawfully withholding records from a reporter under the Freedom of Information Act (FOIA).
The FCC will pay over $43,000 in attorneys’ fees and costs to New York journalist Jason Prechtel over records he initially requested almost two years ago concerning its 2017 net neutrality proceeding.
Read more here.