FOIA News: Exemption 4 seminar

On June 29, 2020, Law Seminar International will host a virtual panel discussion about Exemption 4 following the U.S. Supreme Court’s decision last year in Food Marketing Institute v. Argus Leader Media. The agenda (which lists an incorrect date) is available here. Registration details are available here.

FOIA News: DOJ to review redactions re: Roger Stone

DOJ weighs whether to publish redacted Mueller findings on Roger Stone

By John Kruzel, The Hill, June 12, 2020

The Department of Justice (DOJ) announced Friday that it is reviewing whether to make public the redacted portions of former special counsel Robert Mueller’s findings related to Trump ally Roger Stone.

The review was prompted by a Freedom of Information Act (FOIA) request that sought the removal of redactions in light of Stone’s conviction for lying to Congress and witness tampering, for which Stone was sentenced to more than three years in prison.

Read more here.

Court opinions issued June 11, 2020

Shapiro v. DOJ (D.D.C.) -- denying government’s motion for summary judgment because affidavits failed to: (1) identify information withheld from each document with reasonable specificity; (2) provide reasonably detailed justification for exemptions invoked; (3) connect claimed justification with specific information withheld; and (4) discuss consequences of disclosing requested information for each withholding.

Grey v. Cuccinelli (D.S.C.) -- finding that DHS failed to show that it performed adequate search for emails pertaining to plaintiff’s immigration matter and failed to explain why redacted information fell within ambit of Exemption 7(E).

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

FOIA News: Identities of PPP borrowers are confidential, says Treasury Secretary

Mnuchin Says Names of Small-Business Borrowers Won’t Be Released

By Mark Niquette & Zachary R. Middler, Bloomberg, June 11, 2020

The Trump administration doesn’t plan to release details about companies that received billions of dollars through a high-profile federal coronavirus-relief initiative, Treasury Secretary Steven Mnuchin said this week -- reversing earlier guidance.

The Trump administration believes names of borrowers from the Paycheck Protection Program and the amounts they receive are “proprietary,” and “confidential” in many cases, Mnuchin said Wednesday during a Senate committee hearing.

Read more here.

Court opinion issued June 10, 2020

Samuel v. FBI (D.S.C.) -- adopting magistrate’s recommendation to dismiss plaintiff’s case as moot because FBI released all records in response to one request and plaintiff did not appeal response in which certain information was redacted pursuant to Exemptions 6 and 7(C).

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

FOIA News: Judge asks DOJ about Mueller report redactions

Judge who reviewed full Mueller report asks DOJ about 'merits' of redactions

By Jerry Dunleavy, Wash. Exam’r, June 10, 2020

The federal judge who reviewed the full, unredacted report by special counsel Robert Mueller said he has questions about the reasoning for the Justice Department's redactions and ordered the agency to provide the court with answers.

“Having reviewed the unredacted version of the Mueller Report, the Court cannot assess the merits of certain redactions without further representations from the Department,” Judge Reggie Walton said in a court order this week.

Read more here.

FOIA News: State Dep't reopening FOIA office

The State Department stated in a status conference held today that it intends to reopen its FOIA office on June 15, 2020, according to FOIA lawyer Kel McClanahan, who represents the plaintiff in Jimenez v. DHS, 19-21546 (S.D. Fla.).

On June 9, 2020, CNN reported that the State Department would be able to return up to 40 percent of their personnel on June 15.

FOIA News: OGIS posts CDC webinar

On May 12, 2020, the Office of Government Information Services hosted a webinar in which the Centers for Disease Control and Prevention discussed the agency’s FOIA program. The nearly two-hour discussion is now available online here.

FOIA News: DOJ offering virtual FOIA training

VIRTUAL FOIA TRAINING FOR AGENCY FOIA PROFESSIONALS – JUNE COURSES NOW AVAILABLE

Office of Info. Policy FOIA Post, June 8, 2020

Today, the Office of Information Policy (OIP) announced dates for our new virtual FOIA training during the month of June.  OIP offers a number of training opportunities throughout the year for agency FOIA professionals and individuals with FOIA responsibilities.  Due to COVID-19 and maximum telework, OIP is pleased to offer virtual training sessions that are taught in real-time by OIP instructors. 

Read more here.

Q&A: Are you exhausted?

Q. I filed a lawsuit against a federal agency because its response was several months late. The agency’s response letter miraculously showed up a few days later by snail mail. The envelope was postmarked on the same day I sued the agency and its letter was dated one week earlier. Will the court dismiss my case for not exhausting my administrative remedies?

A. Maybe. After an agency misses its response deadline, it can cure that deficiency by actually responding before a requester files a lawsuit. See Oglesby v. Dep’t of the Army, 920 F.2d 57 (D.C. 1990). In this case, the agency reached a determination before you filed suit, but it did not transmit its determination beforehand. Had the agency mailed its response letter one or more days earlier, I’d say your prospects would be much dimmer. The fact that you received the agency’s letter only after you filed suit is not dispositive in your favor, though a number of district courts have declined to dismiss cases on exhaustion grounds where the plaintiffs raised genuine disputes about whether or when they received agency responses. See, e.g., Houser v. Church, 271 F. Supp.3d, 197 (D.D.C. 2017); Pinson v. DOJ, 69 F.Supp.3d 125 (D.D.C. 2014); Thomas v. OCC, 684 F.Supp.2d 29 (D.D.C. 2010).