FOIA News: Court considers in camera review of Facebook-FTC settlement docs

Docs In $5B Facebook-FTC Deal May Need Judge's Scrutiny

Law360, July 30, 2020

A federal judge suggested Thursday that she will need to get a closer look at documents pertaining to a $5 billion settlement between Facebook Inc. and the Federal Trade Commission before deciding whether to turn them over to Block and Leviton LLP for use in an investor suit. The Boston form sued the FTC under the Freedom of Information Act in December after media reports suggested Facebook had paid billions more than it need to in order to settle the agency’s suit over its privacy practices and protect founder Mark Zuckerberg,

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Court opinion issued July 29, 2020

Gonzalez v. USCIS (S.D.N.Y.) — finding that government performed adequate search for records concerning plaintiff and that it properly withheld records pursuant to Exemptions 7(E) and 7(F).

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

FOIA News: DOJ will release Andrew McCabe's text messages

DOJ agrees to release FBI texts from Andrew McCabe

By Jerry Dunleavy, Wash Exam’r, July 29, 2020

The Justice Department has agreed to release at least some of fired FBI Deputy Director Andrew McCabe’s text messages following a yearslong Freedom of Information Act lawsuit pursued by Judicial Watch, a conservative watchdog group.

The Justice Department told a D.C. federal court last week that it had found dozens of potentially relevant texts from the FBI official who played a key role in the Trump-Russia investigation and the Clinton emails investigation. McCabe was fired after the DOJ inspector general concluded that he misled investigators about his role in leaks to the media, although he denies any wrongdoing. DOJ lawyers told the court and Judicial Watch that they would need until the end of August to review the records before agreeing to a production schedule.

Read more here.

FOIA News: OIG issues report on DHS FOIA program

OIG: DHS FOIA Response Times are ‘Better Than Average’ but Delays Over Complex Requests Must Improve

By Kylie Bielby, Homeland Security Today, July 29, 2020

In response to a request from the Senate Homeland Security and Governmental Affairs Committee, Permanent Subcommittee on Investigations, the Office of Inspector General (OIG) at the Department of Homeland Security (DHS) has conducted a review of DHS’ handling of Freedom of Information Act (FOIA) requests and congressional requests directed to the DHS Office of the Secretary — specifically, the DHS Secretary and Deputy Secretary. 

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Regarding FOIA requests, OIG found that while DHS generally met deadlines for responding to simple FOIA requests, it did not do so for most complex requests. A significant increase in requests received, coupled with resource constraints, limited DHS’ ability to meet production timelines under FOIA, creating a litigation risk for the Department. However, despite the limitations, DHS FOIA response times are better than the averages across the federal government. 

Read more here.

FOIA News: Sierra Club files opening brief in Exemption 5 SCOTUS case

Justices Must Require Release of Species Records, Group Says

Bloomberg Law, July 28, 2020

• Case involves FOIA request for endangered species documents

• Sierra Club says records not protected under exemption

The federal government can’t keep Endangered Species Act documents under wraps simply by labeling them drafts, the Sierra Club told the U.S. Supreme Court.

In a brief filed Monday, the environmental group urged the justices to uphold a lower court’s decision ordering the U.S. Fish and Wildlife Service and National Marine Fisheries Service to hand over the records under the Freedom of Information Act.

Read more here (subscription required).

Court opinions issued July 27, 2020

Bloche v. DOD (D.D.C.) -- on renewed summary judgment, which plaintiffs did not dispute, ruling that Department of the Army had justified its use of deliberative process and attorney-client privileges to withhold one document concerning involvement of medical professionals in designing and implementing interrogation tactics.

Aguiar v. EOUSA (D.D.C.) -- denying plaintiff’s request for litigation costs because plaintiff did not obtain judicial relief or demonstrate that his lawsuit “substantially caused” agency to respond to his FOIA requests. In analyzing “catalyst theory” prong, the court noted that EOUSA had been in contact with plaintiff before his lawsuit, worked with him to narrow requests, and produced some documents.

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

Court opinion issued July 24, 2020

Am. Ctr. for Law & Justice v. NSA (D.D.C.) -- ruling that: (1) National Security Agency properly relied on Exemptions 1 and 3 in refusing to confirm or deny existence of records pertaining to unmasking of Trump campaign official by five Obama Administration officials; (2) State Department’s similar Glomar response was invalid as to unmasking requests from Susan Power regarding Michael Flynn because Office of the Director of National Intelligence officially acknowledged their existence; (3) NSA’s search for certain communications referring to Donald Trump or campaign officials was partially inadequate because search terms used regarding Cheryl Mills were too limited; (4) State Department properly relied on deliberative process privilege to withhold various communications sent or received by Susan Power.

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

FOIA News: Federal reserve updates FOIA regs

The Federal Reserve Board on Friday finalized a rule that implements technical, clarifying updates to its Freedom of Information Act (FOIA) procedures and changes to its rules for the disclosure of confidential supervisory information (CSI), which is supervisory information belonging to the Board that may include proprietary financial institution-specific information. The final rule is generally similar to the proposal from June 2019, with a few changes in response to public comments.

Read more from the agency’s press release here.

FOIA News: FOIA Advisory Committee sends final report to Archivist

The Office of Government Information Services (OGIS) has delivered the Final Report and Recommendations of the 2018-2020 term of the FOIA Advisory Committee to the Archivist of the United States, David S. Ferriero. The report is the result of two years of hard work by the Committee’s 20 members, who include FOIA experts from inside and outside of government.

Read more here.

FOIA News: DOJ under fire for Mueller report redactions

Media Outlets Accuse DOJ of Selectively Redacting Mueller Records

By Megan Mineiro, Courthouse News Serv., July 23, 2020

Attorneys for news outlets suing for records from the Mueller investigation accused the Justice Department on Thursday of applying redactions that back up President Donald Trump’s echoing claim of the probe being a “witch hunt.”

“It appears that this entire process of releasing information is an attempt to paint a one-sided picture of the entire special counsel investigation,” CNN attorney Charles D. Tobin said in a teleconference hearing.

U.S. District Judge Reggie Walton, without speaking to any possible validity in the claim, appeared doubtful that the arguments applied to the case before him regarding records from the FBI investigation into Russian interference in the 2016 presidential election. 

Read more here.