Q&A: Abu Ghraib case

Q. Does ACLU v. DOD (S.D.N.Y. 2005) hold that Glomar responses can be outweighed by public interest? The Wikipedia page on the case says that, but I reviewed the Glomar section of the opinion and didn’t see it.

A. I agree with you that the court did not consider public interest in deciding the propriety of the agency’s Glomar claims, which were issued pursuant to Exemptions 1 and 3. The last sentence/paragraph of the Wikipedia entry is awkwardly written, but it does not appear to me to say differently. The court did consider public interest in deciding whether to release detainee photographs that the agency acknowledged existed and withheld under Exemptions 6, 7(C), and 7(F). On those claims, the court agreed that the ACLU had the better of the argument.

FOIA News: CDC seeking two FOIA analysts to deal with surge

The Centers for Disease Control and Prevention has issued a vacancy announcement for two government information specialists to work on requests, appeals, and litigation at its headquarters in Atlanta, Georgia. The CDC has seen a spike in FOIA activity since the coronavirus outbreak.

Court opinion issued Apr. 10, 2020

Smith v. DOT (9th Cir.) (unpublished) -- summarily affirming district court’s decision that agency performed adequate search that plaintiff was not entitled to discovery or costs.

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

FOIA News: State Dep't FOIA staff teleworking

On April 9, 2020, the State Department announced on its FOIA web page that its staff was teleworking and would not have access to FOIA requests or appeals submitted via mail or fax. See the announcement here.

Court opinions issued April 8, 2020

Stevens v. DHS (S.D. Ill.) -- determining that: (1) Immigration, Customs, and Enforcement (ICE) performed adequate search for records concerning its detainee volunteer work program; (2) ICE properly withheld records pursuant to Exemption 5’s attorney-client privilege, but improperly relied on the deliberative process privilege to withhold “messaging communications”; and (3) Exemptions 6 and 7(C) did not protect names of federal employees mentioned in emails.

Vietnam Veterans of America v. DOD (D. Conn.) -- ruling that DOD properly relied on Exemption 6 to withhold names of service members who were tested for plutonium contamination related to 1966 Palomares nuclear accident, including names of deceased veterans.

Canning v. U.S. Dep’t of State (D.D.C.) -- on third round of briefing, finding that State Department properly withheld records pursuant to Exemption 1 and properly withheld draft letters from President Obama to King Abdullah of Saudi Arabia pursuant to Exemption 5.

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

Court opinions issued April 7, 2020

Ctr. for Investigative Reporting v. Dep’t of the Interior (D.D.C.) -- finding that the Office of Solicitor and National Park Service properly invoked the deliberative process privilege in withholding records, but failed to demonstrate that statute’s foreseeable harm standard had been met.

Flete-Garcia v. USMS (D.D.C.) -- ruling that : (1) agency’s “barbones declaration” failed to demonstrate that agency performed adequate search for records concerning plaintiff’s prison transportation; and (2) agency properly withheld records concerning third parties pursuant to Exemption 7(C).

King & Spalding v. HHS (D.D.C.) -- after evaluating six factors, declining to seal law firm’s billing records filed in connection with its motion for attorney’s fees in FOIA case.

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

FOIA News: State Department litigation delays continue

Covid-19 Delays State Department’s Documents in Media FOIA Suit

By Daniel Seiden, Bloomberg Law, Apr. 8, 2020

• Parties agree to 60-day stay of production

• FOIA compliance ability ‘severely compromised’

The Covid-19 outbreak requires the U.S. State Department to delay production of documents in a lawsuit seeking information about communications with Fox News and other media outlets, parties told a Washington federal court.

Plaintiff Democracy Forward Foundation has agreed to a 60-day stay in production of documents in the Freedom of Information Act suit, and the department will provide an update on document production in 30 days, they told the U.S. District Court for the District of Columbia in a Tuesday joint status report.

Read more here.

FOIA News: Tips on Making FOIA Requests About COVID-19

Tips on Making FOIA Requests About COVID-19

By Toby McIntosh, Global Investigative Journalism Network, Apr. 8, 2020

Journalists already are actively using freedom of information (FOI) laws to understand the COVID-19 pandemic and how their governments have responded. To assist in these efforts, GIJN has developed a preliminary guide, with examples and tips.

No list of suggestions will be complete, or suitable, to different national situations. But good requesting practices are similar worldwide. And with the ongoing pandemic, there are commonalities in many national situations, so thoughts on what to ask for are relevant across borders.

Read more here.

FOIA News: OIP tech workshop to be held on April 20th

BEST PRACTICES WORKSHOP ON TECHNOLOGY IN FOIA TO BE HELD VIRTUALLY

By Office of Info. Policy, FOIA Post, Apr. 7, 2020

The Office of Information Policy (OIP) continues its Best Practices Workshop Series with a workshop on FOIA and technology.  This session, previously scheduled for January and cancelled due to inclement weather, will be held on April 20, 2020 from 10am-12pm via online teleconference.  Please note the new  time.

Read more here.

FOIA News: OGIS blog post on COVID-19

COVID-19 and FOIA: Observations and Useful Links

By Office of Gov’t Info. Serv., Apr. 7, 2020

The COVID-19 pandemic has impacted nearly every aspect of life in the United States, and the Freedom of Information Act (FOIA) process is no exception. We will be sharing information in the coming weeks about how agencies are responding and providing links to resources that we hope will be useful to you. 

Read more here.