FOIA News: State Dep't FOIA work at standstill

State Department FOIA work crippled by virus precautions

By Josh Gerstein, Politico, Mar. 27, 2020

The State Department’s processing of records for public release under the federal government’s best-known transparency law—the Freedom of Information Act—has ground to a virtual halt due to work changes aimed at quelling the coronavirus pandemic, according to an agency official.

State Department official Eric Stein said in a formal court declaration this week that the unusual system the agency relies upon for line-by-line review of requested documents has been hit hard by the shift to telework as a means of reducing the number of people in federal offices

Read more here.

Court opinion issued Mar. 26, 2020

Pub. Citizen v. U.S Dep’t of Housing & Urban Dev. (D.D.C.) -- deferring decision as to whether HUD properly withheld records as “non-responsive” because agency had not completed its document production; stating, however, that court was “skeptical” that the government could justify treating “a single bullet point from a PowerPoint slide or a single email in a chain (or subdivision thereof)” as a separate record “outside extraordinary circumstances.”

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

FOIA News: ASAP cancels National Training Conference

Today the American Society for Access Professionals announced that it had cancelled its National Training Conference scheduled for May 18-20, 2020. See more here.

Court opinions issued Mar. 25, 2020

Ramdeo v. DOJ (D.D.C.) -- concluding that Federal Bureau of Prisons performed adequate search for records concerning plaintiff’s incarceration and that it properly withheld records pursuant to Exemptions 5 (ACP), 6, 7(C), 7(E), and 7(F).

Brennan Ctr. for Justice v. DOJ (D.D.C.) -- deciding that: (1) Civil Rights Division failed to adequately describe its search for requested records concerning State compliance with voter registration list laws; (2) agency properly withheld three categories of emails pursuant to Exemptions 5 or 7(A), but did not provide sufficient information about fourth category of records to permit court to determine whether withholdings under those same exemptions were proper.

Montgomery v. IRS (D.D.C.) -- ruling that IRS did not perform reasonable search for records concerning its correspondence with third parties about plaintiffs’ tax liabilities, but that it properly relied on Exemption 7(D) to refuse to confirm or deny existence of records pertaining to a confidential informant.

Elgabrowny v. CIA (D.D.C.) -- finding that Executive Office for United States Attorneys performed reasonable search for an exhibit originating from plaintiff’s criminal case and for the interview notes of Ramzi Yousef.

Hall v. Stoneman (D.D.C.) -- determining that DOJ properly relied on Exemption 7(C) to withhold name of victim from grand jury testimony and that agency’s disclosure of copies of documents instead of originals was “irrelevant.”

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

Court opinions issued Mar. 24, 2020

Goldwater Inst. v. HHS (9th Cir.) (unpublished) -- vacating and remanding district court’s opinion and finding that FDA improperly relied on agency regulations to categorically withhold entire contents of Investigational New Drug file instead of evaluating whether specific records in file fell within Exemption 4.

Trent v. DHS (D.D.C.) -- deciding that USPS tracking notice was insufficient to establish that DHS received plaintiff’s administrative appeal letter, which was sent to address listed in DHS’s response letter instead of address listed in DHS regulations.

Reclaim Records v. Dep't of Veterans Affairs (S.D.N.Y.) -- finding that: (1) agency improperly relied on Exemption 6 to withhold two databases concerning deceased beneficiaries, rejecting agency’s argument that categorical withholding was warranted because it would be too burdensome to segregate commingled data of living individuals; further noting that one database had been released nine years earlier and remained in public domain; and (2) additional briefing was required on data field for “cause of death.”

ACLU v. ICE (D. Mass.) -- ruling that: (1) agency performed inadequate search for records concerning its participation in National Sheriffs’ Association (NSA) conference in 2019, and granting plaintiff limited discovery concerning search; (2) draft conference agenda created and shared by NSA did not meet threshold requirement of Exemption 5; (3) draft talking points and related emails did not not fall within deliberative process privilege as interpreted by First Circuit.

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

FOIA News: ProPublica seeks tips for COVID-19 FOIA requests

ProPublica is soliciting tips from government officials and those on the front lines of the Coronavirus pandemic in order to target agencies with public records requests. See details here.

Court opinions issued Mar. 23, 2020

Nat’l Immigrant Justice Ctr. v. DOJ (7th Cir.) -- affirming district court’s decision that DOJ properly relied on Exemption 5’s deliberative process privilege to withhold communications exchanged between the Attorney General and DOJ’s Office of Immigration Litigation or the Solicitor General regarding certain immigration proceedings, rejecting appellant’s argument that such communications were ex parte and outside bounds of Exemption 5.

The Prot. Democracy Proj. v. NSA (D.D.C.) -- holding that agency properly relied on Exemption 5’s presidential communication privilege to withhold memorandum that memorialized ”advice solicited by, and provide to, the President that directly related to presidential decision-making with respect to foreign relations and intelligence-gathering activities.”

Muhammad v. EOUSA (D.D.C.) -- finding that EOUSA properly withheld records concerning plaintiff’s conviction for transportation of a minor for prostitution under Exemption 3, in conjunction with Federal Rule of Criminal Procedure 6(e), and Exemption 5 (attorney work product privilege).

Freedom Watch v. Robert S. Mueller III (D.D.C.) -- concluding that DOJ performed adequate search for medial-related records concerning Special Counsel Mueller’s investigation into Russian interference in 2016 election, and that it properly withheld records pursuant to Exemptions 5 (DPP), 6, and 7(C).

Rocky Mtn. Wild v. BLM (D. Colo.) -- ordering BLM to perform supplemental search for records concerning certain land offered for oil and gas leasing, but denying plaintiff’s request for discovery and agreeing that agency properly withheld records pursuant to Exemption 6 and Exemption 5’s deliberative process, attorney-client, and commercial privileges.

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

Q&A: Service with a smile

Q. If I name cabinet agency ‘x’ as the only defendant in a FOIA lawsuit, do I serve the agency’s general counsel and the local U.S Attorney in addition to the agency at the 950 Pennsylvania address?

A. You’ll have to serve three entities: (1) the Attorney General (at 950 Pennsylvania Ave.); (2) the U.S. Attorney’s Office in the district where the suit is filed'; and (3) and the cabinet agency. See this handy guide from the Reporters Committee for Freedom of the Press:

FOIA News: Reminder of D.C. Circuit hearing

The D.C. Circuit’s oral argument in Judicial Watch v. DOJ will be heard on Monday morning. Live audio can be heard here.

FOIA News: D.C. Circuit to hear FOIA case on Monday

On March 23rd, the D.C. Circuit will hear oral argument in Judicial Watch v. DOJ, which concerns the government’s reliance on the attorney work-product privilege to withhold FBI interviews with Barack Obama, Rahm Emanuel, and Valerie Jarrett about former Illinois Gov. Rod Blagojevich.

The district court’s opinion dated June 25, 2019 is here. President Trump commuted Blagojevich’s prison sentence on February 18, 2020.