FOIA News: D.C. Cir. will not require CIA to create records about FOIA requesters

CIA Needn’t Answer FOIA Requests About Who Sent FOIA Requests

By Porter Wells, Bloomberg Law, Aug. 11, 2020

• National security nonprofit lodged 45 records requests

• Agency needn’t create documents, other exemptions apply

The CIA doesn’t have to hand over information about which organizations have filed public records requests with the agency, after the D.C. Circuit Tuesday rejected an appeal by nonprofit organization National Security Counselors.

The group’s Freedom of Information Act request to the CIA asked for lists of all the agency’s FOIA requesters from 2008 to 2010 who identified themselves as “news media,” “educational or scientific,” “commercial,” or “all other.”

Read more here (accessible with subscription).

Copy of opinion here.

FOIA News: Interior IG report addresses FOIA "awareness review"

Watchdog report raises new questions for top Interior lawyer

By Rebecca Beitsch, The Hill, Aug. 10, 2020

A new report from the Interior Department’s watchdog reignites questions over the involvement of the agency's top lawyer in withholding public documents.

The report could give ammunition to Democrats who have accused Interior Solicitor Daniel Jorjani of perjuring himself before lawmakers.

The report from Interior’s Office of Inspector General (OIG) centers around the “awareness review” process at Interior that allowed political appointees to review Freedom of Information Act (FOIA) requests — something critics say gave Trump appointees undue influence over what records were released.

Read more here.

Court opinions issued Aug. 10, 2020

Ossen LLC v. U.S. Cent. Command (2nd Cir.) -- reversing and vacating district court’s decision that DOD had previously disclosed--and thus had improperly withheld pursuant to Exemption --certain classified images of terrorist attacks in Iraq.

Carlborg v. Dep’t of the Navy (D.D.C.) -- finding that agency performed adequate search for records pertaining to plaintiff’s involuntary separation from the military and properly withheld records pursuant to Exemption 5 and 6.

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

FOIA News: DOD may withhold bombing images, 2nd Cir. rules

Images of Terrorist Bombs Stay Out of Reach in Suit Against Iran

Bloomberg Law, Aug. 10, 2020

• Previous disclosure of similar images irrelevant

• Specific requests exempt from FOIA disclosure

The Department of Defense properly withheld images of the damage caused by terrorist attacks on armored vehicles from the law firm suing Iran on behalf of military personnel injured in the attacks, the Second Circuit said Monday.

Osen LLC filed a Freedom of Information Act request for the images, saying they could be disclosed because the army previously released similar images from other attacks. Citing FOIA Exemption 1, which applies to information about national security that’s classified as secret, the army refused the request.

Full article here (accessible with subscription).

Copy of opinion here.

Court opinion issued Aug. 7, 2020

Lukas v. FCC (D.C. Cir.) (per curiam) -- holding that: (1) plaintiff failed to allege that FCC had “policy or practice” of failing to respond to FOIA appeals; (2) plaintiff forfeited his challenge to district court’s dismissal of his claim seeking declaration that Universal Service Administrative Company was not an agency for FOIA purposes, because he failed to address issue in his opposition brief; and (3) summarily affirming district court’s decision that agency properly withheld records pursuant to Exemption 4, but sidestepping issue of whether disputed records were “agency records.”

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

Court opinions issued Aug. 6, 2020

Ctr. for Public Integrity v. DOD (D.D.C.) -- deferring ruling on government’s exemption claims and ordering government to submit for in camera review certain records pertaining to the “Ukraine Security Assistance Initiative” that were withheld under Exemption 5.

Abdulkader v. Trump (D.D.C) -- dismissing case because plaintiff sued wrong defendants and failed to show that any federal agency received proper FOIA request.

Whitey v. FBI (W.D. Wash.) -- ruling that FBI properly relied on Exemption 7(D) in refusing to confirm or deny existence of records indicating whether deceased individual was agency informant, and denying plaintiff’s request for discovery or in camera review.

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

Court opinions issued Aug. 5, 2020

Besson v. U.S. Dep’t of Commerce (D.D.C.) -- on renewed summary judgment, ruling that: (1) agency failed to demonstrate that names of contractor’s employees qualified as “commercial” information under Exemption 4; (2) agency properly withheld agreement with contractor pursuant to Exemption 4, except for portion of Statement of Work that might appear in public domain; (3) agency failed to establish that contractor’s names were protected under Exemption 6.

Frank LLP v. CFPB (D.D.C.) -- finding that agency properly relied on Exemptions 7(A), 7(C), and 7(E) to withhold agency transcripts of third-party testimony associated with certain enforcement actions.

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

FOIA News: DHS's FOIA processes under scrutiny

Delays Underlie Most FOIA Suits against DHS, Report Says

FEDweek, Aug. 6, 2020

Nearly four-fifths of suits brought against DHS under the Freedom of Information Act cite missed deadlines for responses, an IG report has said, far more than other grounds such as the adequacy of the searches performed or the department’s decision to invoke an exception under the FOIA.

The report noted that law requires agencies to respond within 20 business days to routine requests and gives an additional 10 for more complex requests. When an agency does not respond to a request within the pertinent timeframe a requester may file suit.

Read more here.

Read OIG’s report here.

FOIA News: Amicus brief filed in SCOTUS Exemption 5 case

On August 3, 2020, a coalition of journalism groups, led by the Reporters Committee for Freedom of the Press, filed an amicus brief supporting the appellee in the Supreme Court case U.S. Fish & Wildlife v. Sierra Club. The central dispute in this case concerns records withheld under Exemption 5’s deliberative process privilege.

FOIA News: Lawmakers seek to protect feds who file FOIA requests

Leahy Introduces The Federal Employee Access To Information Act To Protect Federal Employees From Retaliation For Filing FOIA Requests

. . . Helping Preserve FOIA as a Tool to Expose Government Wrongdoing

Press Release, U.S. Senator Patrick Leahy of Vermont

Senator Patrick Leahy (D-Vt.), along with Rep. Carolyn B. Maloney and Rep. Gerald E. Connolly, introduced the Federal Employee Access to Information Act to ensure that federal employees are able to use the nation’s premier transparency law, the Freedom of Information Act (FOIA), without reprisal.  

FOIA helps expose government wrongdoing and abuses, and Leahy believes that federal employees must be free to use FOIA in the same way as other citizens.  This legislation would prohibit retaliation against federal employees for filing and pursuing FOIA requests

Read more here.