Court opinions issued Aug. 28, 2020

Ctr. for Pub. Integrity v. DOD (D.D.C.) -- deciding that: (1) DOD properly withheld communications concerning agency’s Ukraine Security Assistance Initiative pursuant to Exemptions 3 and 6; and (2) and DOD properly relied on deliberative process, attorney-client, and presidential communications privileges to withhold records, with the exception of certain redactions on five documents.

Nova Oculus Partners. v. SEC (D.D.C.) -- finding that SEC properly relied on Exemptions 5, 6, and 7(C) to withhold records concerning agency’s investigation of plaintiff.

Bryan v. DOJ (D.D.C.) -- ruling that Civil Rights Division performed reasonable search for records pertaining to third-party informant who testified at plaintiff’s trial.

Nat’l Pub. Radio v. FBI (D.D.C.) -- determining that FBI performed reasonable search for videos depicting ballistics tests of certain types of ammunition, but that agency failed to justify withholding videos under Exemptions 7(E) and 7(F).

Am. Oversight v. GSA (D.D.C.) -- concluding that GSA failed to perform reasonable search for agency’s communications with Trump Organization, because agency misconstrued plaintiff’s request and did not justify its decision to limit search to emails.

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

Court opinion issued Aug. 27, 2020

Cole v. Copan (D.D.C.) -- ruling that: (1) the National Institute for Standards and Technology (NIST) performed adequate search for interviews concerning the September 11, 2001 terrorist attacks in New York City; (2) NIST properly relied on Exemption 3 in conjunction with 15 U.S.C. § 7306 to withhold interviews of emergency response personnel; and (3) NIST failed to clearly show that it could not segregate non-exempt information from Exemption 6-protected information included in interview of private individual.

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

FOIA News: FOIA Advisory Committee to meet Sept. 10th

The NAtional Archives and Records Administration has announced that the Freedom of Information Act Advisory Committee will meet virtually on September 10, 2020, from 1pm to 4pm. This will be the first meeting of the new committee term. The purpose of this meeting will be to introduce all of the members, hear a report from the co-chairs of the Chief FOIA Officers' Council Technology Committee, and discuss topics for the Committee to consider in the next two years. Registration information is available here.

Court opinions issued Aug. 25, 2020

Farah v. DOJ (D. Minn.) -- concluding that incarcerated pro se plaintiff constructively exhausted his administrative remedies even though Executive Office for U.S. Attorneys allegedly issued partial determination before plaintiff filed suit, because plaintiff alleged that he never received EOUSA’s determination and EOUSA failed to respond to plaintiff’s telephone messages regarding the status of his request.

White v. DOJ (S.D. Ill.) -- denying in part plaintiff’s motion for reconsideration of court’s summary judgment determination, and ordering hearing with respect to plaintiff’s motion to hold U.S. Marshals Service in contempt for delinquency and misrepresenting the Court.

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

FOIA News: Exemption 4 litigation trends

We Are Beginning To See Effects Of High Court FOIA Ruling

By Kevin Barnett & Nooree Lee, Law360, Aug. 25, 2020

It has been a year since the U. S. Supreme Court's Food Marketing Institute v. Argus Leader Media crafted  a new standard for determining confidential information exempt from disclosure under Freedom of  Information Act Exemption 4. 

Trial courts have started to weigh in on how the decision will impact the FOIA  landscape.  From these  early  decisions, three trends have emerged: (1) courts have protected more  information than previously  protected; (2) courts have required agencies to show confidentiality using much  the same information  required under the old standard; and (3) courts have been reluctant to tackle open  questions  about whether  to require agencies. . .

Read full article here (accessible with free trial subscription)..

FOIA News: Gov't FOIA jobs available

• Dep’t of the Interior, Supervisory Gov’t Info. Specialist (GS 14), Virginia, closes 8/24/2020

• Dep’t of Veterans Affairs, Gov’t Info. Specialist (GS 11), Illinois, closes 8/24/2020

• Nat’l Oceanic & Atmospheric Admin., Gov’t Info. Specialist (ZA 4), Maryland, closes 8/25/2020

• Dep’t of Veterans Affairs, Gov’t Info. Specialist (GS 7-9), Florida, closes 8/26/2020

• Ctr. for Disease Control & Prevention, Gov’t Info. Specialist (GS 9), Georgia, closes 8/28/2020

• Dep’t of Veterans Affairs, Gov’t Info. Specialist (GS 12), New York, closes 8/31/2020

• Fed. Res. Sys., Gov’t Info. Specialist (FR 24-26), D.C., closes 9/4/2020

• Dep’t of Veterans Affairs, Gov’t Info. Specialist (GS 9), Texas, closes 9/11/2020

Court opinion issued Aug. 21, 2020

Machado Amadis v. DOJ (D.C. Cir.) -- affirming district court’s decision that: (1) State Department and DEA performed reasonable searches for records concerning their processing of plaintiff’s prior FOIA requests; (2) Office of Information Policy properly declined to process certain DEA and FBI documents contained in plaintiff’s OIP appeal files because plaintiff’s request asked for only records “memorializing or describing the processing” of plaintiff’s prior appeals; (3) OIP properly relied on Exemption 5’s deliberative process privilege to withhold portions of staff’s appeal recommendation forms; (4) OIP reasonably explained why statute’s foreseeable harm provision was satisfied, noting that agency had considered "information at issue’” and concluded that disclosure “‘would’ chill future internal discussions”; and 5) plaintiff was not excused from administratively appealing “no records” responses issued by DEA and FBI merely because agencies offered to perform additional searches if plaintiff supplied additional information

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

FOIA News: Registration open for FOIA Advisory Committee meeting

Join us Virtually for the September 10 FOIA Advisory Committee Meeting

Office of Gov’t Info. Serv.,, Aug. 20, 2020

Register now to join us virtually on Thursday, September 10, 2020, from 1:00 to 4:00 p.m. ET at the first meeting of the Freedom of Information Act (FOIA) Advisory Committee’s 2020-2022 term. The meeting is open to the public; however, you must register to receive information for accessing the meeting online.

Following their introductions,  Committee members will hear reports from the co-chairs of the Chief FOIA Officers Council Technology Committee and returning Committee members before discussing topics for the Committee to consider in the next two years.

Read more here.

FOIA News: FOIA records posted by FBI cause angst

‘Wildly irresponsible’: FBI bashed for tweeting link to anti-Semitic ‘Protocols of the Learned Elders of Zion’

By Jaclyn Peiser, Wash. Post, Aug. 20., 2020

For more than a century, the fabricated text “The Protocols of the Learned Elders of Zion” has advanced a persistent anti-Semitic trope: that Jews are plotting to take over the world. From Hitler to Henry Ford, rabid anti-Semites have long shared the notorious text.

On Wednesday, an FBI Twitter account did the same. An account called FBI Records Vault tweeted out a link to a PDF containing the anti-Semitic tome as well as FBI documents related to it, with no other context, leaving critics baffled and outraged.

The FBI later apologized and clarified the account is automated and sends links to records that have been made public via Freedom of Information Act requests.

Read more here.

FOIA News: Exemption 4 fails in non-FOIA contract case

In a non-FOIA case, the Civilian Board of Contract Appeals concluded that Exemption 4 did not protect the U.S Department of Education's financial details concerning its claims that it overpaid on a student debt  collection contract. In reaching its decision, the Board noted that most of the information at issue originated from the Department, thus falling outside of Exemption 4. The Board further noted that the Department had waived its ability to rely on Exemption 4 because it voluntarily made the information publicly available in earlier filings in the case. Lastly, the Board found that the Department failed to show that disclosure would reasonably harm an Exemption 4-protected interest, rejecting Department’s argument that its “fear of discovery problems” in another case was sufficient.