FOIA News: Feds file opening SCOTUS brief in Exemption 5 case

Endangered Species Records Ruling Would Undermine FOIA, Feds Say

By Ellen M. Gilmer, Bloomberg Law, May 22, 2020

• Agencies are challenging Ninth Circuit ruling

• Dispute stems from records for EPA regulation

The Trump administration is urging the U.S. Supreme Court to allow the government to keep certain endangered species records out of the public eye.

Government lawyers submitted a brief Thursday calling on the justices to reverse a lower court’s ruling that required the U.S. Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) to release draft documents related to an environmental regulation’s impacts on at-risk species.

Read more here (subscription required).

FOIA News: FOIA Advisory Committee invites pubic to comment on report

The 2018-2020 FOIA Advisory Committee, whose term ends in early June, has invited the public to comment on its draft final report through June 2, 2020. For more details, see the following post from the Office of Government Information Services.

Court opinion issued May 21, 2020

Statton v. Fla. Fed. Judicial Nominating Comm’n (11th Cir.) -- affirming district court’s decision that the Florida Federal Judicial Nominating Commission, which was created by two U.S. Senators from Florida, was not a federal agency subject to FOIA.

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

Court opinions issued May 20, 2020

Rodriguez v. FBI (D.D.C.) -- granting government’s unopposed summary judgment motion after concluding that FBI performed adequate search for records concerning plaintiff’s criminal case and that it properly withheld records pursuant to Exemptions 3, 5, 6, 7(A), 7(C), 7(D), 7(E), and 7(F).

Rutila v. DOT (N.D. Tex.) -- accepting findings and recommendations of magistrate judge that FAA performed adequate search and properly withheld records pursuant to Exemption 5’s deliberative process privilege.

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

FOIA News: OIP Recaps Best Practices Workshop

VIRTUAL BEST PRACTICES WORKSHOP FOCUSES ON TECHNOLOGY AND FOIA

Department of Justice Office of Information Policy, May 21, 2020

On April 20, 2020, 500 FOIA practitioners from across the government joined the Office of Information Policy (OIP) and the Office of Government Information Services (OGIS) for a virtual discussion on the Chief FOIA Officer (CFO) Council Technology Committee’s recent efforts to develop best practices and recommendations based on a study of agencies’ use of technology. The workshop featured the Committee’s co-chairs Eric Stein from the Department of State and Michael Sarich from the Veterans Health Administration, who highlighted the Committee’s recent accomplishments, reviewed several best practices on the use of technology in FOIA, and shared recommendations made to the CFO Council and the Committee’s 2020 agenda.

Read more here.

Court opinions issued May 19, 2020

Citizens United v. U.S Dep’t of State (D.D.C.) -- concluding that with the exception of relatively minor redactions on two documents, State Department justified its withholdings to Christopher Steele-related documents pursuant to Exemptions 1 and 3.

White v. DOJ (S.D. Ill.) -- determining that: (1) plaintiff failed to reasonably describe requests sent to FBI, ATF, and U.S. Marshals Service for records relating to white supremacist groups; (2) FBI performed adequate search for records concerning other white supremacist groups or was reasonably producing records at rate of 500 pages monthly; (3) FBI, ATF, and USMS properly refused to confirm or deny existence of records concerning third-party individuals; (4) USMS was processing or had already processed records concerning plaintiff despite initial delay and court would not retain jurisdiction over claim; and (5) BOP performed adequate searches for records concerning plaintiff and properly withheld records pursuant to Exemption 5, 6, 7(C), 7(E), and 7(F).

Hutchins v, EOUSA (D.D.C.) -- finding that EOUSA performed adequate search for grand jury records pertaining to plaintiff’s drug conspiracy conviction in 1996.

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

FOIA News: Office of National Drug Control Policy to Update FOIA Regulations

AGENCY: Office of National Drug Control Policy.

ACTION: Proposed rule.

SUMMARY: The Office of National Drug Control Policy (ONDCP) is updating its Freedom of Information Act (FOIA) implementing regulation to comport with the FOIA Improvement Act of 2016 and best practices. The proposed rule describes how to make a FOIA request with ONDCP and how the Office of General Counsel, which includes the ONDCP officials authorized to evaluate FOIA requests, processes requests for records. The proposed rule also states ONDCP’s Privacy Act Policies and Procedures. The proposed rule describes how individuals can find out if an ONDCP system of records contains information about them and, if so, how to access or amend a record. ONDCP seeks comments on all aspects of the proposed rule and will thoroughly consider all comments that are submitted on time.

DATES: Send comments on or before June 30, 2020.

Read more here.

Court opinions issued May 18, 2020

Doyle v. DHS (2nd Cir. 2020) -- affirming district court’s decision that that visitor logs for White House and President Trump’s Mar-a-Lago home are not “agency records” of the U.S. Secret Service, relying on D.C. Circuit’s 2013 opinion in Judicial Watch v. U.S. Secret Service.

District of Columbia v, ICE (D.D.C.) -- ruling that ICE properly relied on Exemption 7(C) to redact personal identifying information from records generated by agency’s arrest of twelve individuals in July 2018.

LaVictor v. Trump (D.D.C.) -- dismissing claims against three DOJ components because plaintiff offered no evidence that he had submitted requests, and dismissing claim against Federal Bureau of Prisons because plaintiff failed to appeal from agency’s 2016 adverse determination.

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

FOIA News: President's visitor logs immune from FOIA requests

Trump’s Visitor List Not Subject to FOIA, 2nd Cir. Rules

Law360, May 18, 2020

The Second Circuit on Monday decline to revive an archivist’s suit seeking President Donald Trump’s visitor logs at the White House and his Mar-a-Lago residence in Florida, finding the president’s visitor schedule is not subject to Freedom of Information of Information Act requests.

Read more here (accessible with free trial subscription).

FOIA News: Yale looks at FOIA suit against SBA

The First Casualties of Emergency Relief Programs

By Bernard Bell, Yale J. on Reg., May 18, 2020

* * *

This post will briefly discuss two aspects of the suit.  The first is obvious, can the SBA put off providing information of the type the media requesters are seeking to focus on its programmatic objectives?  The second, whether the SBA can withhold some of the information sought, is a bit less obvious.

Read more here.