FOIA Advisor

FOIA News: GAO asked to examine agency FOIA compliance

FOIA News (2019)Allan BlutsteinComment

Hill Leaders Seek Review of FOIA Compliance

FEDweek, Apr. 3, 2019

A bipartisan group of House and Senate leaders on government oversight issues has asked the GAO to examine federal agency compliance with 2016 changes to the Freedom of Information Act.

Some agencies are not fully implementing the 2016 law and continue to burden requesters with unlawful delays and denials,” their request said. Among other provisions, that law created a presumption of openness, allowing agencies to withhold records only when there is foreseeable harm to an interest protected by an exemption or a legal requirement preventing their release.

Read more here.

Court opinion issued April 1, 2019

Court Opinions (2019)Allan BlutsteinComment

Hohman v. IRS (6th Cir.) (unpublished)-- concluding that appellant offered no compelling reason for failing to appeal magistrate judge’s report and recommendation to district court, and thus affirming district court’s decision that government properly relied on Exemptions 6 and 7(C) to withhold records from Treasury Inspector General of Tax Administration concerning agency misconduct.

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

Court opinions issued Mar. 31, 2019

FOIA News (2019)Allan BlutsteinComment

Elgabrowny v. CIA (D.D.C.) -- finding that: (1)(a) FBI performed reasonable search for handwritten notes pertaining to interview of Ramzi Ahmed Yousef; (b) Executive Office for U.S. Attorneys failed to sufficiently describe its search for records pertaining to plaintiff’s criminal case; (c) CIA conducted adequate search in response to plaintiff’s request for a court-filed exhibit, but failed to even respond to plaintiff’s second request; and (2) CIA properly withheld records pursuant to Exemption 3 in conjunction with National Security Act of 1974.

Matthews v. FBI (D.D.C.) -- determining that: (1) FBI performed adequate search for records concerning plaintiff’s prosecution for wire and bank fraud; (2) agency properly withheld records pursuant to Exemption 3 (in conjunction with Federal Rule of Criminal Procedure 6(e); Exemption 5 (deliberative process, attorney work-product, and attorney-client privileges), and Exemptions 6, 7(C), 7(D), and 7(E), except for agency’s use of Exemption 6 to withhold Federal Tort Claims Act file and its use of Exemption 7(D) regarding certain informants; and (3) plea agreement that prohibited plaintiff from requesting FBI’s investigatory files was unenforceable because it would serve no “legitimate criminal justice interest.”

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

FOIA News: Julian Castro urges Congress to subject itself to the Freedom of Information Act

FOIA News (2019)Kevin SchmidtComment

Julian Castro urges Congress to subject itself to the Freedom of Information Act

By Naomi Lim, Washington Examiner, Apr. 1, 2019

Democratic 2020 presidential candidate Julian Castro on Monday called on Congress not to shield itself from large swathes of the Freedom of Information Act.

Castro, the former Obama administration housing secretary and mayor of San Antonio, Texas, made the comments at the We the People Membership Summit, an event held in Washington, D.C., for liberal activists to discuss electoral and economic reforms with eight White House contenders.

"We have to make Congress subject to the Freedom of Information Act,” he said. “We need to shine a light on what happens in Congress."

Read more here.

Court opinion issued Mar. 30, 2019

Court Opinions (2019)Allan BlutsteinComment

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.

Court opinions issued Mar. 29, 2019

Court Opinions (2019)Allan BlutsteinComment

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.

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.