FOIA News: SCOTUS to hear Exemption 5 case on Nov. 2

Supreme Court Sets Argument Date for Sierra Club FOIA Case

By Ellen Gilmer, Bloomberg Law, Aug. 19, 2020, 1:23 PM

The U.S. Supreme Court will hear oral arguments Nov. 2 in a closely watched dispute over Endangered Species Act documents.

The court released the November schedule Wednesday, placing the case first for the month. The justices have a small environmental docket for the 2020 term so far, with just two cases on deck—though several more could be added.

• At issue in the endangered species case is whether the Freedom of Information Act requires federal agencies to hand over certain internal records that are labeled “drafts.” The dispute stems from a lower court order that said the U.S. Fish and Wildlife...

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FOIA News: Lawsuit seeks records about sale of NARA’s Seattle office

Washington AG sues for public records on National Archives closure

Daily World, Aug. 18, 2020

After six months with no reply from three federal agencies for public records on the closure of the National Archives at Seattle, state Attorney General Bob Ferguson on Monday sued them in federal court.

A fourth agency, the little-known, five-person Public Buildings Reform Board that made the recommendation for closure, on July 20 had demanded $65,400 “to redact the material for production to your office.”

Says Ferguson, “This is not a national security issue. What do they have to redact? It’s a property sale. It’s outrageous that after six months, they want the taxpayers of Washington to pay $65,000 so they can make redactions.”

Read more here.

Court opinions issued Aug. 14, 2020

In re: Hillary Clinton (D.C. Cir.) -- finding that district court clearly abused its discretion in authorizing depositions of Hillary Clinton and Cheryl Mills, and granting the former’s petition for mandamus but not the latter’s because Ms, Mills had other means to attain relief.

Whitaker v. Dep’t of Commerce (2nd Cir.) -- affirming district court’s decision that : (1) the First Responder Network Authority, an independent entity within the Department of Commerce’s (DOC) National Telecommunications and Information Administration (NTIA), was not subject to FOIA; and (2) DOC and NTIA properly declined to search for requested records because such searches would have been futile, adopting D.C. Circuit’s standard.

Citizens for Responsibility & Ethics in Wash. U.S Dep’t of Commerce (D.D.C.) -- concluding that: (1) Department waived use of deliberative process privilege because it disclosed disputed records to third party and took no steps to rectify the disclosure; and (2) Department properly relied on Exemption 4 to withhold records provided under implied assurance of confidentiality.

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

FOIA News: ICE tries to put request on ice

DC Judge Calls ICE's 66-Year FOIA Doc Plan 'Unsatisfying'

Law360, Aug. 14, 2020

U. S. Immigration and Customs Enforcement says it will take 66 years to sift out the sensitive information from a round of immigration database documents that it has been ordered to turn over as part of a long-running records fight — unwelcome news to the D. C. federal judge overseeing the case. U. S. District Judge Amit P. Mehta said at a virtual status conference on Friday that he was very frustrated to hear the government's time estimate, particularly because  the parties are six years into the dispute over technical documents tied to two ICE database.

Read full article here (accessible with free subscription).

FOIA News: D.C. Circuit rejects bid to depose Hillary Clinton

Appeals court blocks Hillary Clinton deposition on private email server

By Harper Neidig, The Hill, Aug. 14, 2020

A federal appeals court on Friday blocked a judge's order that Hillary Clinton be deposed as part of a conservative group's lawsuit for records related to the private email server she used while serving as secretary of State.

A three-judge panel on the D.C. Circuit Court of Appeals ruled unanimously that the Freedom of Information Act (FOIA) lawsuit filed by the conservative group Judicial Watch did not merit the level of legal inquiry that would require Clinton to sit for a deposition.

Read more here.

Court opinions issued Aug. 13, 2020

James Madison Proj. v. Dep’t of the Treasury (D.D.C.) -- ruling that Office of the Comptroller of the Currency properly relied on Exemption 8 to withhold its final conclusions of its examinations of forty banks with respect to their sales practices.

Arab Am. Inst. v. OMB (D.D.C.) -- concluding after in camera review of disputed documents that OMB properly relied on Exemption 5’s deliberative process privilege to withhold draft recommendations and proposals concerning use of “Middle Eastern and North African” as race category in 2020 Census.

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

Court opinions issued Aug. 12, 2020

Wattleton v. DOJ (D.D.C.) -- deciding that plaintiff failed to show that DOJ or OIP received his administrative appeal, which was improperly addressed, and that no extraordinary circumstances existed to excuse his improper mailing.

Hall & Assoc. v. EPA (D.D.C.) -- holding that agency properly relied on Exemption 6 to withhold email distribution lists constructed primarily by individual users who voluntarily signed up to receive agency updates.

Stelmaszek v. Dep't of Veterans Affairs (D.D.C.) -- finding that agency released in full all records in response to one of plaintiff’s requests, and that agency was not responsible for processing second request that plaintiff sent to wrong address.

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

FOIA News: Harvard prof weighs in on SCOTUS Exemption 5 case

The very test under the Endangered Species Act is supposed to be ‘What is the best available science?'”

In a Q&A, Animal Law & Policy Clinic director describes what is at stake in SCOTUS Freedom of Information Act case brought by the Sierra Club

By Sarah Pickering, Harvard Law Today, Aug. 12, 2020

Should the public get a window into the factors federal agencies considered—or ignored—when devising important environmental, health and safety regulations, or would exposing those internal discussions to public scrutiny chill deliberations? That is the question underlying an amicus brief that the Harvard Law School’s Animal Law & Policy Clinic recently filed in the United States Supreme Court in a Freedom of Information Act (FOIA) case brought by the Sierra Club and involving the public’s right of access to scientific analyses concerning the adverse impacts of federal actions on endangered and threatened species.

Read more here.

FOIA News: New members appointed to FOIA Advisory Committee

Archivist Appoints New Members to the 2020-2022 FOIA Advisory Committee

Office of Gov’t Info. Serv., Aug. 12, 2020

We are pleased to announce that Archivist of the United States David S. Ferriero has appointed 20 Freedom of Information Act (FOIA) experts — 10 government FOIA professionals and 10 requester community representatives — to serve on the fourth term of the FOIA Advisory Committee. 

Read more here.

Court opinions issued Aug. 11, 2020

Nat’l Sec. Counselors v. CIA (D.C. Cir.) -- ruling that: (1) district court properly decided that CIA was not required to disclose list of FOIA requesters by fee category, because agency’s FOIA database did contain such information; (2) affirming district court’s decision that request to CIA seeking all records about IBM supercomputer named “Watson” imposed unreasonably burdensome search; and (3) DOJ’s Office of Legal Counsel was not required to release additional portions of two agency legal opinions, rejecting argument that attorney-client privilege had been waived.

Boyd v. Trump (D.D.C.) -- finding that incarcerated pro se plaintiff improperly named various government individuals as defendants and failed to show that he submitted FOIA requests to any Executive Branch agency.

Langston v. DHS (D. Ariz.) -- concluding that DHS properly relied on Exemption 3, in conjunction with National Security Act, in refusing to confirm or deny existence of records about plaintiff.

Abakporo v. EOUSA (D.D.C.) — upon government’s unopposed renewed summary judgment, determining that EOUSA properly searched for and disclosed all records pertaining to specific grand jury records of interest to plaintiff.

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