Court opinions issued June 18, 2019

McGehee v. DOJ (D.D.C.) -- denying plaintiff’s motion to reconsider summary judgment ruling in case concerning FBI’s investigation of Jonestown massacre, because plaintiff failed to show change of controlling law, availability of new evidence, or clear error or manifest injustice, as required by FRCP 59(e).

Wolk Law Firm v. NTSB (E.D. Pa.) -- holding that agency properly relied on Exemptions 2, 3, 4, 5, and 6 to withhold records concerning multiple accident investigations, including cell phone video of airplane’s cockpit. The court further held that FOIA did not compel production of actual airplane wreckage, as it falls outside meaning of “agency record.”

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

FOIA News: Interior's FOIA process under scrutiny

Interior's internal FOIA policy gives political appointees sign-off on document releases, raising concerns

By Ellie Kaufman, CNN, June 18, 2019

The Interior Department has developed a second, undisclosed internal Freedom of Information Act review policy, which requires certain political appointees to sign off on documents before releasing them publicly, according to internal emails and documents reviewed by CNN.

This extra layer of review, established in a draft memo in May 2018 that CNN has viewed, requires the deputy chief of staff, director of communications and the deputy solicitor to be copied on documents that mention politically appointed staff members before they are released in response to a FOIA request, a process critics say is injecting politics into what is supposed to be a nonpolitical process.

Read more here.

[ALB comment: Newsworthy, but not groundbreaking. Treasury, for example, established a sensitive review process during the Obama Administration. See https://www.nationalreview.com/2015/06/obama-administrations-newly-political-approach-foias-eliana-johnson/. Many other agencies have employed similar processes. See https://causeofaction.org/tag/sensitive-review/].

Court opinion issued June 17, 2019

Jenkins v. DOJ (D.D.C.) -- concluding that Executive Office for United States Attorneys performed reasonable search for records pertaining to plaintiff’s state criminal case, noting that EOUSA was not required to retrieve records from any other DOJ component, e.g., FBI.

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

FOIA News: Interior IG asked to investigate FOIA program

Green groups ask Interior watchdog to investigate agency's public records policies

By Miranda Green, The Hill, June 17, 2019

A number of conservation groups are asking the Interior Department’s internal watchdog to investigate reports that political appointees are improperly interfering in the release of public records.

Two separate complaints filed Monday by Earthjustice and the Campaign for Accountability say officials are using an "awareness review" policy to unlawfully delay the release of Freedom of Information Act (FOIA) requests, and demand Interior’s Office of Inspector General (OIG) look into the situation.

Earthjustice’s letter, dated June 14, claims the department's FOIA process "has been subject to political interference by political appointees and non-career staff" since 2017.

Read more here.

Court opinions issued June 14, 2019

DiBacco v. U.S. Dep’t of the Army (D.C. Cir.) — affirming district court’s decision that: (1) U.S. Army performed adequate search for records concerning Nazi general Reinhard Gehlen; and (2) agency properly withheld records pursuant to Exemption 3 in conjunction with National Security Act of 1947 and CIA Act of 1949.

Sluss v. DOJ (D.D.C.) -- ruling that: (1) DOJ failed to provide sufficient information for court to determine whether deliberative process privilege applied to memoranda concerning plaintiff’s request to be transferred to Canadian prison; (2) with respect to Exemption 7(F) withholdings, DOJ failed to show that disclosure would reasonably endanger plaintiff’s life, as agency alleged, but ordering documents to be released to and maintained by plaintiff’s counsel only; (3) DOJ properly relied on Exemption 7(C) to withhold information pertaining to third parties; and (4) DOJ failed to demonstrate that it performed adequate search for records concerning penal treaty between Canada and the United States.

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

FOIA News: Federal Reserve to revise FOIA regs

The Board of Governors of the Federal Reserve System intends to revise its FOIA regulations, according to a notice scheduled to be published in the Federal Register on June 17, 2019. Public comments will be accepted through August 16, 2019.

FOIA News: Commission of Fine Arts finalizes FOIA regs

On June 14, 2019, the Commission of Fine Arts issued the final version of its FOIA regulations following a public comment period. The revised regulations are effective immediately.

Court opinions issued June 12, 2019

AquAlliance v. Nat'l Oceanic & Atmosphereric Admin. (D.D.C.) -- denying plaintiff’s request for $41,000 in fees and costs because agency acted reasonably in processing “massive amount” of documents once the lawsuit was filed.

Judicial Watch v. U.S. Dep’t of State (D.D.C.) -- granting in part and denying in part agency’s use of attorney-client and deliberative process privileges to withhold records concerning agency’s use of personal email by or under Secretary Clinton.

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

Court opinions issued June 7, 2019

Cable News Network v. FBI (D.D.C.) -- ruling that: (1) agency properly relied on Exemption 3, in conjunction with the National Security Act of 1947, to redact information from James Comey’s memos concerning his meeting with President Trump; (2) agency properly relied on Exemption 1 with respect to 12 of 20 redactions from Comey’s memos.

Daily Caller News Found. v. FBI (D.D.C.) -- denying FBI’s request for an Open America stay because agency failed to show “exceptional circumstances” or that it made sufficient progress in reducing its backlog; denying plaintiff’s request for FBI to process 1200 pages per month instead of FBI’s usual rate of 500 pages per month.

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

FOIA Commentary: DOJ releases FY 2018 FOIA metrics

On June 6, 2019, the Department of Justice released a summary of the annual FOIA reports prepared by federal agencies for the fiscal year 2018. The staff of FOIA Advisor — Allan Blutstein, Ryan Mulvey, and Kevin Schmidt — reacts to DOJ’s report.

AB: My first thought was “it’s about time,” because fiscal year 2018 ended more than eight months ago. As for the data, I was not surprised by the increase in the number of incoming FOIA requests, though the total number (863,729) fell short of the one million figure predicted by OIP’s director. Nor was I surprised by the 17 percent increase in backlogged requests in light of the month-long government shutdown, which DOJ’s report does not even mention.

KS: The elephant in the room, as always, is the government-wide release rate that irks the FOIA community every year. The report notes an overall release rate of 93.8%, but as National Security Archive wrote on this yesterday, “[w]hat the report does not say is that OIP calculates that overly-generous figure by counting nearly entirely redacted documents as successful partial releases.” NSA estimates the release rate is closer to “between 50 and 60 percent.” It’s obvious to everyone involved that there are issues to be addressed in FOIA processing (resources, staffing, technology, etc.), so it helps nobody when these reports provide a distorted view of the what’s actually happening.

RM: In my mind, it would be helpful for the DOJ summary to breakdown statistics and distinguish between “true” FOIA requests and first-party requests governed by the Privacy Act. Considering the number of first-party requests handled by agencies such as the Department of Homeland Security, bracketing the Privacy Act may provide a more accurate picture of where the government is with administration of the FOIA. I also would have like more information about how agencies are complying with their proactive disclosure obligations. For example, how often are agencies posting frequently requested/”rule of 3” records?