FOIA Advisor

FOIA News: ICYMI, 9th Cir. rules that agencies can be compelled to post records online

FOIA News (2019)Allan BlutsteinComment

Ninth Circuit: Courts Can Force Feds to Put Records Online

By Nicholas Iovino, Courthouse News Serv., Aug. 30, 2019

In a decision that will expand the power of courts to make government agencies post information online, the Ninth Circuit this week reversed the dismissal of a lawsuit challenging the removal of animal welfare compliance data from a U.S. Department of Agriculture website.

“The decision from the Ninth Circuit is a major victory for public advocates using the Freedom of Information Act,” said Christopher Berry, senior staff attorney for plaintiff Animal Legal Defense Fund (ALDF).

ALDF and three other groups sued the USDA in 2017 after it abruptly pulled animal welfare compliance data offline, a move the plaintiffs say frustrates their missions to fight animal cruelty and monitor government enforcement.

Read more here.

Court opinions issued Aug. 29, 2019

Court Opinions (2019)Allan BlutsteinComment

Animal Legal Def. Fund v. USDA (9th Cir.) -- in 2-1 decision, holding that statute authorized courts to order agencies to comply with “reading room” provisions (in this case, online posting of “frequently requested” records generated by the Animal Plant Health Inspection Service) and remanding to district court to determine whether plaintiffs had exhausted their administrative remedies.

Junk v. Bd. of Governors of Fed. Reserve Sys. (S.D.N.Y.) -- concluding that records concerning three loans issued by the Federal Reserve Bank of New York do not constitute agency records of the Board.

White Coat Waste Project v. U.S. Dep't of Veterans Affairs (D.D.C.) -- ruling that agency improperly relied on deliberative process privilege to withhold name of principal investigator on animal research protocol, and that agency failed to provide it with sufficient information to determine whether principal investigator's name was properly withheld under Exemption 6.

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

FOIA News: Scholars File Suit for OLC Opinions Issued Over 25 Years Ago

FOIA News (2019)Kevin SchmidtComment

The Justice Department Can’t Keep Its Own Law Secret Forever

By Cristian Farias, Politico, Aug. 29, 2019

In 2016, Congress amended the Freedom of Information Act to place a 25-year cap on documents previously shielded by what the Justice Department calls “deliberative process privilege”—which the government has cited in the past to keep OLC’s precedent-setting legal opinions secret. By law, then, that type of privilege should no longer cover OLC decisions older than 25 years—though some or portions of them may still be kept from disclosure if, for example, they contain classified information. And neither should the department be allowed to claim attorney-client privilege over these opinions, which aren’t legal advice but controlling decisions of law.

With this understanding of the law and with an eye toward greater transparency, a group of scholars last week filed a lawsuit in federal court arguing that Office of Legal Counsel memoranda that are at least 25 years old should be disclosed to the public under the Freedom of Information Act. Among the plaintiffs are historians of presidential power, the civil rights movement, the laws of war, government surveillance and immigration—all areas where the government’s enormous discretion to enforce the law has been guided by legal judgments that our citizenry would be well served to understand and reckon with, even today. (The Justice Department didn’t comply with an earlier administrative request for these opinions.)

Read more here.

Court opinion issued Aug. 27, 2019

Court Opinions (2019)Allan BlutsteinComment

Satterlee v. Comm'r of IRS (W.D. Mo.) -- dismissing action against IRS because plaintiff did not send request to appropriate official or address, but finding that request to Treasury used address “very similar” to address provided in agency regulations and should have been forwarded to appropriate office for processing.

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

FOIA News: More discovery approved in Clinton emails case

FOIA News (2019)Allan BlutsteinComment

Judge orders more discovery in Clinton emails FOIA case

By Daniel Chaitin & Jerry Dunleavy, Wash. Exam’r, Aug. 23, 2019

A years-long legal fight over Hillary Clinton's emails took another turn when a federal judge in Washington, D.C., ordered additional fact-finding from State Department officials on Thursday.

U.S. District Court Judge Royce Lamberth authorized nearly all of what conservative watchdog group Judicial Watch sought in a recent status report for its case related to the former secretary of state's unauthorized email server, including the depositions of seven Department officials over the next four months. This includes Jamie Bair, an attorney in the Office of Legal Adviser who was assigned to Judicial Watch’s Freedom of Information request and its lawsuit, and Tasha Thian, a State Department records officer who wrote about Clinton's email practices in a 2018 book. Three of the officials' names are redacted.

Read more here.

FOIA News: DOJ sued for OLC opinions

Court Opinions (2019)Allan BlutsteinComment

Office of Legal Counsel Is Illegally Withholding Opinions from Public Scrutiny, Suit Alleges

Plaintiffs argue that 25-year-old documents are vital to understanding the Trump administration's decisions and should be made public under the 2016 FOIA reform.

By Courtney Buble, Gov. Exec., Aug. 23, 2019

A free speech institution, a nonprofit watchdog and several scholars filed a lawsuit Wednesday against the Office of Legal Counsel for failing to fulfill Freedom of Information Act requests for decades-old documents they believe will shed light on current government surveillance activities, immigration policy and other significant issues. They argue the information should be released under a 2016 amendment to the law. 

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The suit, brought by the Knight First Amendment Institute at Columbia University, the Campaign for Accountability and a group of scholars,  is seeking documents related to FOIA requests for formal OLC opinions prior to Feb. 15, 1994. 

Read more here.

Court opinion issued Aug. 22, 2019

Court Opinions (2019)Allan BlutsteinComment

Nat. Res. Def. Council v. EPA (S.D.N.Y.) -- concluding that EPA properly relied on Exemption 5’s deliberative process privilege to withhold modeling computer program that evaluates cost and effectiveness of certain emission-reduction technologies. In reaching its decision, the court found that EPA had satisfied the statute’s foreseeable harm requirement.

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