FOIA Advisor

Court opinion issued Apr. 24, 2019

Court Opinions (2019)Allan BlutsteinComment

Rojas v. FAA (9th Cir.) -- reversing district court’s opinion and finding that: (1) FAA failed to demonstrate the adequacy of its search for records concerning employment test; and (2) “consultant corollary” principle relied upon by FAA was “contrary to Exemption 5’s text and FOIA’s policy of broad disclosure, and its legal foundation . . . is tenuous at best.”

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

FOIA News: More on SCOTUS Exemption 4 case

FOIA News (2019)Allan BlutsteinComment

Argument analysis: Justices appear likely to endorse broader reading of FOIA exemption for “confidential” commercial information

By Mark Fenster, SCOTUSblog, Apr. 23, 2019

An observer might be excused if she was confused by Monday’s oral argument in Food Marketing Institute v. Argus Leader Media. The case concerns the application of the term “confidential” commercial or financial information in Exemption 4 of the Freedom of Information Act to grocery-store data collected from transactions involving debit cards issued to Supplemental Nutrition Assistance Program benefits recipients. A South Dakota newspaper had requested the data as part of its investigations into the SNAP program. FOIA cases typically inspire at least gestural exhortations about the necessity of an informed public and the danger that excessive governmental disclosure poses to the nation. Instead, the justices first spent a fair amount of time on complex justiciability issues that arose late in the litigation and then focused on dry questions of statutory interpretation. This was in part the product of the factual and procedural issues in this case, but it suggests that the court may follow the lead of 2011’s Milner v. Department of Navy and reverse purpose-driven lower-court interpretations of FOIA in favor of statutory textualism.

Read more here.

FOIA News: SCOTUS hears Exemption 4 case

FOIA News (2019)Allan BlutsteinComment

Supreme Court leans toward restricting access to business data

Justices heard arguments on Monday in the case, which pits business groups against news organizations and open-government advocates.

By Josh Gerstein, Politico, Apr. 22, 2019

The Supreme Court appears headed for a ruling that could dramatically restrict access to federal government records with details about private businesses.

Justices heard arguments on Monday in the case, which pits business groups against news organizations and open-government advocates.

The Trump administration has allied itself with the business groups seeking to overturn an appeals court precedent that has allowed the release of business-provided data for nearly half a century. Media outlets and transparency advocates have pushed back against the effort, warning that reining in access to such information could eliminate public scrutiny of an untold number of federal databases and other records about highly regulated, potentially dangerous industries.

Read more here.

Court opinions issued Apr. 18-19, 2019

Court Opinions (2019)Allan BlutsteinComment

Apr. 19, 2019

Natural Res. Def. Council v. EPA (D.D.C.) -- finding that: (1) plaintiff had Article III standing to challenge EPA’s policy or practice of threatening to deem FOIA requests as “voluntarily withdrawn” when: (a) the agency concludes on an initial review that the request does not “reasonably describe” the records sought and so notifies the requester, and (b) the requester fails to contact the EPA within ten days regarding the asserted deficiency in the request; and (2) neither party had sufficiently explained whether plaintiff had statutory standing or could obtain injunctive or similar relief.

Apr. 18, 2019

Kriemelmeyer v. U.S. Dept. of State (W.D. Wis.) -- concluding that: (1) DOJ’s National Security Division performed adequate search for Foreign Agent Registration records and was under no obligation to inform plaintiff that he could have searched pubic database for same records; (2) Department of State properly denied plaintiff’s request for records pertaining to his passport application because plaintiff failed to certify his identity in accordance with agency regulations.

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

Court opinion issued Apr. 17, 2019

Court Opinions (2019)Allan BlutsteinComment

Elec. Frontier Found. v. DOJ (D.D.C.) -- ruling that: (1) FBI improperly relied on Exemption 7(E) in refusing to confirm or deny existence of records concerning agency’s use, training, and recruitment of informants at computer repair facilities; (2) FBI properly invoked Exemption 7(E) to withhold certain records concerning use of informants at Best Buy; (3) FBI failed to provide sufficient information to allow court to determine whether Exemption 7(C) protected name of criminal convicted on evidence obtained from Best Buy in Kentucky; (4) FBI did not sufficiently explain grounds for invoking Exemptions 6, 7(C), 7(D), and 7(E) to categorically withhold informant files for eight confidential informants acknowledged in criminal case.

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