Court opinions issued Aug. 12, 2019

Animal Legal Def. Fund v. USDA (9th Cir., 2019) -- affirming decision that district court had jurisdiction over plaintiff’s claim that USDA had policy or practice of denying plaintiff’s requests for expedited processing, and also affirming district court’s decision that threats to safety of animals do not fall within statute’s expedited processing provision -- nor, in dicta, within Exemption 7(F).

Cable New Network v. FBI (D.D.C.) -- denying FBI’s motion to reconsider prior opinion granting access to FBI declaration, rejecting argument that FBI had “effectively” invoked Exemption 3 despite never mentioning it in briefs or declarations.

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

FOIA News: MuckRock's Executive Editor announces resignation

See MuckRock’s article here.

Q&A: Hide and seek

Q. If I am trying to confirm the empanelment of a federal grand jury on a particular matter, would I be able to FOIA the DOJ or the FBI for records related to the case? Presumably it would be denied explicitly because criminal investigations are exempt from FOIA scrutiny. But I’m thinking that the denial letter might therefore, in turn, confirm the criminal investigation in the first place? Am I misunderstanding anything about this process?

A. You can try, but the statute allows the government to thwart requests like yours. For example, If the very fact of a criminal investigation's existence is unknown to the target of the investigation, and disclosing the existence of the investigation could reasonably be expected to interfere with enforcement proceedings, the government is authorized to inform the requester that a search yielded no responsive records. See 5 U.S.C. § 552(c)(1). Alternatively, if your request seeks records about third parties, the government can simply refuse to confirm or deny the existence of records on privacy grounds without conducting a search.

FOIA News: Texas Sen. Cornyn joins push to strengthen public access to government records

Texas Sen. Cornyn joins push to strengthen public access to government records

By Bill Lambrecht, Houston Chronicle, Aug. 9, 2019

A bipartisan alliance of senior U.S. senators, including Texas Sen. John Cornyn, is sponsoring legislation to counter a U.S. Supreme Court ruling in June interpreting the word “confidential” in a way that further blocks the release of government-held information on businesses.

…

In Washington, Cornyn and three other Judiciary Committee heavyweights - chairman Chuck Grassley, R-Iowa, Vermont Democrat Patrick Leahy, a former chairman, and Dianne Feinstein of California, now the committee’s ranking Democrat — plan to advance legislation after the Senate recess to counter the Supreme Court’s effects on the Freedom of Information Act.

Read more here.

Court opinion issued Aug. 8, 2019

Ctr. for Pub. Integrity v. U.S. Dep't of Commerce (D.D.C.) -- deciding that Commerce and U.S. Office of Government Ethics submitted deficient Vaughn indices and failed to demonstrate that they released all segregable, non-exempt information -- in particular the authors, recipients, dates, and subject fields of emails, letters, and memoranda, which government claimed had no informational value.

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

Court opinion issued Aug. 7, 2019

BuzzFeed v. U.S. Dep't of Educ. (D.D.C.) -- ordering agency to reprocess records pertaining to sexual harassment investigations after finding that agency applied Exemptions 6 and 7(C) too broadly.

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

Court opinions issued Aug. 6, 2019

Elec. Privacy Info. Ctr. v. DEA (D.D.C.) -- concluding that DEA properly relied on Exemption 7(E) to withhold two categories of records concerning the Hemisphere Project, a program that collects daily data on telephone calls.

Sheppard v. DOJ (W.D. Mo.) -- determining that: (1) DOJ failed to perform adequate search for records pertaining to government’s investigation into its prosecution of arson case; (2) DOJ failed to submit adequate Vaughn Index; and (3) privacy waivers of third parties submitted by plaintiff would override DOJ’s assertions of Exemptions 6 and 7(C).

Open Soc'y Justice Initiative v. CIA (S.D.N.Y.) -- denying government’s motion to reconsider court’s order that Department of State and Department of Defense each process 5000 pages per month in case concerning death of journalist Jamal Khashoggi.

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

FOIA News: Gov't must process 5k pages monthly regarding Khashoggi

NY judge cites ‘urgency’ of FOIA case regarding Khashoggi

By Associated Press, Las Vegas Review Journal, Aug. 6, 2019

Federal agencies must produce thousands of pages monthly of records pertaining to the killing of Saudi dissident Jamal Khashoggi because learning about his disappearance as quickly as possible is of “paramount importance,” a judge said Tuesday.

Representatives of the U.S. Department of State and Department of Defense had told U.S. District Judge Paul A. Engelmayer that producing 5,000 pages monthly makes it impossible to respond in a timely fashion to other Freedom of Information Act requests.

Engelmayer ordered the agencies to get it done anyway, saying the disappearance of the Washington Post columnist and Saudi national was of “considerable public importance.”

Read more here.

FOIA News: Interior sought FBI's advice in designing FOIA policy

Interior took notes from FBI while developing controversial FOIA policy

By Miranda Green, The Hill, Aug, 6, 2019

The Interior Department took notes from the FBI, which handles reams of classified material and is known as a slower responder to public records requests, while developing its controversial policy for Freedom of Information Act (FOIA) requests, according to emails reviewed by The Hill.

Internal emails obtained through a FOIA request by Earthjustice and shared with The Hill show that Interior employees were eager to talk to FBI staff who oversaw FOIA requests as it sought to deal with its own mounting public records requests.

Read more here.

Court opinion issued Aug. 2, 2019

Bartko v. DOJ (D.D.C.) -- on remand from D.C. Circuit, determining that: (1) FBI needed to provide more detailed showing in order to rely solely upon Exemption 7(C) to withhold material sought by grand jury; (2) Office of Professional Responsibility properly withheld records pursuant to Exemption 5 (deliberative process privilege) and Exemption 6; and (3) EOUSA properly withheld records pursuant to Exemptions 5, 6, and 7(C), as court had ruled in earlier opinion.

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